Writ Petition No.1762 of 1999

19th December, 2003

Petitioner Counsel: Mr. SHIRAJ RUSTAMJI,N. D. DOCTOR,. Hariani & /Co
Respondent Counsel: Mr. C. U. SINGH,Mrs. P. A. FERNANADES,Mr. PHIROZ PALKHIWALA,JAMSHED MISTRY,. Crawford Bayley & Co,Mr. S. K. NAIR,Mr. PERCY D. GHANDY,LEVI RUBENS,GAGRAT & Co,Mr. V. K. RAMABHADRAN,MADHU M., Mr. YEDUNATH BHAGAVAN , Ms. S. PRIYA,T. C. KAUSHIK,Mr. R. V. GOVILKAR

Cases Cited:
M. C. Mehta Vs. Union of India, (2002)4 SCC 356 [Para 13,15]

JUDGMENT

Dr. D. Y. CHANDRACHUD, J. :- An aversion for long names is a consequence of the hectic pace of life in metropolitan Mumbai. Busy thoroughfares named after freedom fighters, public institutions, including on occasion, those rendering judicial functions and train stations, to name a few instances, have popular acronyms. For resident of the City, the daily routine begins with a journey in a suburban train, traverses the familiar sight of a red public bus with an occasional foray into a taxi cab. Consistent with its penchant for abbreviation, the city labels the Bombay Electric Supply and Transport Undertaking as the BEST. The public transport buses which the Undertaking plies, single deckers and double deckers, are BEST buses. The subject matter of these proceedings are the BEST buses. In a petition filed in the public interest by the Smoke Affected Residents Forum, directions have been sought from this Court to control and reduce emissions from motor vehicles plying in the City of Mumbai. The Petition has been, in the not too distant past, the foundation for judicial orders relating to taxis, transport vehicles and three wheelers. The Petitioners seek an extension of the directions to the BEST buses. The Undertaking on the other hand urges that no directions are required as its acronym, BEST, can be demonstrated to serve as an adjective as well, as least in matters of environmental pollution.

2. On the invocation of the jurisdiction of this Court under Articles 226 of the Constitution, an Expert Committee was constituted by an order dated 15th December, 1999. The Committee consisted of the Transport Commissioner Mr. V. M. Lal as its chair person, Dr. P. S. Pasricha (who has since been appointed as a Commissioner of Police) and representatives of the Maharashtra Pollution Control Board, the Union Ministry of Environment and Forests, the Bombay Environmental Action Group and Clean Air. The terms of reference of the Committee included inter alia the use of alternative fuel such as Compressed Natural Gas (CNG) : administration and regulatory measures that would be required for setting up additional stations for dispensing CNG : the desirability and feasibility of converting existing buses and taxis to CNG and for phasing out private cars, trucks, buses, taxis, auto-rickshaws and two wheelers over a certain age limit. The Expert Committee appointed by the Court submitted its report in April, 2000 whereupon, a Division Bench of this Court consisting of Chief Justice B. P. Singh (as the Learned Chief Justice then was ) and Mrs. Justice Ranjana Desai issued directions in an order dated 17th October, 2001.

3. The order of the Court contained directions that would apply to taxis, three wheelers and transport vehicles with the exception of BEST buses. Salient among the directions were the following cut off dates by which phasing out orders would came into operation, unless the vehicle was converted to run on CNG/LPG :

*1st March, 2002 : Phasing out of taxis over the age of 15 years;

*1st January, 2003 : Phasing out of taxis more than 8 years but less than 15 years old;

*1st March, 2002 : Phasing out of three wheelers over the age of 10 years;

*1st January, 2003 : Phasing out of three wheelers above the age of 8 years;

*1st January, 2003 : Phasing out of transport vehicles over 15 years old;

*1st January, 2004 : Phasing out of transport vehicles over the age of 8 years with the exception of BEST buses.

4. Some of the deadlines fixed by the Court were extended in the course of implementation in order to obviate hardship. The Division Bench noted the following reasons for excluding BEST buses at that stage from the deadline which had then been prescribed for phasing out transport vehicles:

"With regard to the BEST buses, we consider it in public interest, for the present, not to direct phasing out of the fleet of buses of BEST, though, as a matter of policy, BEST should also start thinking in terms of converting its fleet of buses to CNG/LPG. It is noticed that the buses of BEST are well-maintained and on account of better maintenance, do not contribute to the atmospheric pollution to the extent some other heavy commercial vehicles which are not properly maintained contribute. We, however, make it clear that at a later stage, if necessary, this Court may issue directions even with regard to private cars, two-wheelers and BEST buses." (emphasis supplied).

5. The BEST buses now form the subject matter of these proceedings.

AGE PROFILE :

6. From the profile that BEST has provided to the Court what emerges is that the Undertaking has a fleet of 3379 buses as on 1st January, 2003. (The present figures have only marginal changes). Of these buses, 1327 are upto 8 years of age, 1291 between 8 and 14 years and 716 are above the age of 15. Of the buses plied by BEST all 716 buses which are over 15 years of age and all the1291 buses between 8 and 15 years of age do not comply with even the Euro-I standard. Thus, about 80% of the fleet of buses consisting of 2696 buses do not comply even with the Euro-I norm. 601 buses or about 18% are Euro-I compliant and 41 or about 1% are Euro-II compliant. Only 1.3% (45 buses) run on CNG. 21% of the fleet is over 15 years old (716 buses) and about 60% of the fleet is over 8 years old (2007 buses). The buses plied by BEST are subjected to extensive use during the hours of the day and of the night. BEST has stated before the Court that on an average 3312 buses are on the road daily and each bus plies 213 kms. on an average every day. BEST carries on an average 39,58,908 passengers every day or 12.27 crores passengers every month.

BEST's maintenance programme.

7. The substance of BEST's contention before the Court is that apart from emission testing that is carried out by the Undertaking, it follows a regular and periodical replacement schedule. BEST has stated before the court that a majority of the components of its buses as well as the engines are replaced from time to time. The Government of Maharashtra has by a notification permitted BEST to replace the engines of its buses without the approval of the registering authority. The maintenance schedule undertaken by BEST includes the periodical replacement of fuel filters, fuel injection pumps, fuel injections, injectors with nozzles and other parts. The engine is attended to for overhaul after 1,50,000 Kms. and an overhauled engine may be installed on another chassis. Though the Government of Maharashtra has set the pollution limit for diesel vehicles at 65 Hartridge units, BEST has a self imposed limit of 45 Hartridge units which each vehicle is required to observe. The Undertaking has been granted an authorisation by the RTO, Mumbai to issue a certificate of Pollution Under Control for its buses and motor vehicles. The Undertaking has stated before the Court that it has a regular training programme for the benefit of its staff for ensuring the maintenance of the vehicle which it plies.

The Report of the Lal Committee :

8. The programme adopted by BEST for the maintenance of its vehicles was recognised in the report of the V. M. Lal committee appointed by this Court. In paragraph 8.26 of its report, the Committee noted that it was devoting "separate consideration" for BEST buses in view of the fact that these buses are well maintained and the engine as a whole unit is replaced at the time of repair or maintenance. At the same time, the Committee was of the view that "the present situation is not acceptable and that some action to improve the emission from the existing BEST fleet is still necessary". The Committee noted that a large number of buses in the BEST fleet had engines which were not even Euro-I compliant. In view of the technical and other difficulties which were pointed out in regard to the conversion of existing BEST buses to run on CNG, the Committee was of the view that it may be not advisable at this stage to insist on conversion of all existing buses to run on CNG. The Committee recommended a graded schedule for the phasing out of BEST buses unless converted to run on CNG; namely:

(i) With effect from 1st January, 2001, all BEST buses older than 20 years be phased out unless converted to run to CNG;

(ii) With effect from 1st January, 2002, all BEST buses older than 15 years be scrapped unless converted to run on CNG;

(iii) With effect from 1st January, 2002, all BEST buses over the age of 8 years would be phased out unless converted to run on CNG or unless they were retrofitted with Euro-II compliant engines;

(iv) With effect from 1st May, 2000, all new buses to be purchased by BEST must run on CNG until Euro-II compliant engines became available in these new vehicles;

(v) Once Euro-II compliant buses became available, the BEST may exercise an option either to have CNG operated buses or Euro-II or higher version diesel engine buses in such a manner that by 1st April, 2005 at least 1000 buses are operated on CNG ;

(vi) Engines of existing BEST buses which are not even Euro-I compliant must be changed to Euro-II compliant engines by 1st October, 2002.

The BEST, it must be noted, had furnished a statement to the Lal Committee recording that in pursuance of its procurement schedule, by 1st April, 2003, the Undertaking would have 963 buses with Euro-I engines and 200 buses with CNG engines so that 1163 buses, constituting 33% of the fleet, would be either Euro-I compliant or would have CNG engines.

9. On 31st July, 2001, the Central Government, in exercise of the powers conferred by the Central Motor Vehicles (Second Amendment) Rules, 2001, has notified 31st October, 2001 as the date on which the provisions of Rule 1(ii)(b) shall come into force inter alia in Mumbai including Greater Mumbai in respect of four wheeled vehicles. As a result, with effect from 31st October, 2001, Bharat Phase II Norms (equivalent of Euro-II norms) have been applied inter alia to Mumbai including Greater Mumbai. BEST has stated before the court that all future purchase orders by the Undertaking will be only for Euro-II/CNG buses.

CNG BUSES :

10. In its representation before the Lal Committee, BEST stated that by 1st April, 2003, it did intend to induct 200 CNG buses into its fleet. Before this Court, in its first affidavit dated 17th September, 1999 filed on behalf of the Undertaking, by its Assistant General Manager (Transportation Engineering), the Undertaking noted that it had "taken steps to introduce buses run on Compressed Natural Gas into its fleet". The Undertaking stated that CNG buses are "visible smoke free" and the introduction of a CNG engine would result in a reduction of Carbon monoxide levels by 56%, Hydro carbons by 55%, Nitrogen Oxide by 56% and other particles by 86%. The Undertaking stated that "in view of the environmental advantages, it had already commenced operating 10 buses on CNG while an order for 20 more buses had been placed. The introduction of CNG buses, it was stated, was "in the public interest and as a public duty", despite the higher cost of procurement of CNG buses. In a second affidavit that was filed before this Court on 30th June, 2000, the Undertaking stated before the court that one of the problems that remained to be resolved was that for a CNG Filling Station about 500 sq.mtrs. of area was required by Mahanagar Gas Ltd (MGL). The Undertaking stated that it was not in a position to offer MGL space at its Depots in South Mumbai but space could be allotted at the Bus Depots at Ghatkopar and Goregaon/Oshiwara. The position of the Undertaking at that stage was that CNG technology was still in a developmental stage for heavy vehicles and had not been adequately tested for reliability and viability. Hence the Undertaking stated that it was prudent for the Undertaking to purchase CNG Buses in small lots to begin with and thereafter to under take larger procurements, once the technology and production was established. The Undertaking stated that as opposed to a Euro-I chassis which costs approximately Rs.9.10 lakh, the cost of a CNG chassis is approximately Rs.14.16 lakhs. In a third affidavit which was filed before the Court on 23rd April, 2001, the Undertaking placed on record the problems which it perceived with CNG and its supply. These problems were inter alia that (i) the supply of CNG was exclusively within the control of Mahanagar Gas Ltd which had a monopoly; (ii) MGL is a private sector Company and the price of CNG was not administered by the Central Government; (iii) In Delhi the sale price of CNG was about 12.12 per kg., while in Mumbai the price for CNG was Rs.18.35 per kg.; (iv) It was necessary to ensure adequate and speedy supply and filling of buses with CNG because the process of filling must be between 7.30 p.m. and 3.30 a.m.; (v) The Undertaking had communicated three locations for the installation of CNG Filling stations (Goregaon, Oshiwara and Anik); (vi) A heavy financial burden would be cast upon the Undertaking by conversion to CNG. In its affidavit, the Undertaking stated that though initially there was a high failure rate of CNG buses which had been inducted into its fleet, thereafter, as a result of interaction with the manufacturer, there was an improvement in the reliability of such buses. Hence the Undertaking stated that whereas initially it was impossible to purchase a substantial number of CNG buses the Undertaking would now be in a position to purchase further buses in a phased manner. During the year 2001-02, the Undertaking had decided to place orders for 171 CNG buses.

11. On 11th April, 2001 at a meeting held between the General Manager of the BEST Undertaking and the Managing Director of Mahanagar Gas Ltd. among the other officials, the Undertaking emphasised that it had decided to procure CNG buses on a larger scale as a measure of BEST's commitment to reducing pollution in the City of Mumbai.

12. The Undertaking then filed its fourth affidavit in these proceedings dated 23rd October, 2001 stating that at that stage there was one CNG Filling Station facility at the Anik Bus Deport. MGL sought an area of 610 sq.mtrs. at the Ghatkopar Bus Depot which would not be acceptable to the Undertaking. The Undertaking stated that it had revised its procurement plan and as against 171 CNG Buses, it would be purchasing 171 buses conforming to Euro-I norms. Finally, in an affidavit dated 13th January, 2003, the Undertaking sought to highlight the additional cost which CNG conversion would implicate. The Undertaking has stated that between 1996-97 and 2001-02, its Transport Division has recorded deficits which for the last of the aforesaid years is in the amount of Rs.150 crores. The recommendation of the Lal Committee, it has been stated, would lead to an outlay of Rs.370 crores, and no assistance is forth coming either from the Municipal Corporation or the State Government. Though Ashok Leyland had communicated that it could retrofit 50 Buses with Euro II compliant engines each month, even if this target is achieved, retrofitment would take four years.

The Delhi model: Directors of the Supreme Court :

13. At this stage, it would be instructive to refer to the judgment of the Supreme Court in M. C. Mehta Vs. Union of India, (2002)4 SCC 356. Directions were sought in a Petition filed in the public interest for the purpose of regulating and controlling the problem of vehicular pollution in Delhi. The Supreme Court held that under the precautionary principles, which is an intrinsic part of the doctrine of sustainable development. Government and statutory authorities must anticipate, prevent and attack causes of environmental degradation. Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. The onus of proof is on the actor or the developer to show that his action is environmentally benign. Permission to use automobiles has environmental implications and any auto policy must, therefore, conform to constitutional principles and to the statutory duties cast upon Government under the Environment Protection Act. The Supreme Court then held that :

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

(a) Focus upon measures to ...anticipate, prevent and attack... the cause of environmental degradation in this field.

(b) In the absence of adequate information, lean in favour of environmental protection by refusing rather than permitting activities likely to be detrimental.

(c) Adopt the precautionary principle and thereby ensure that unless an activity is proved to be environmentally benign in real and practical terms, it is to be presumed to be environmentally harmful.

(d) Make informed recommendations which balance the needs of transportation with the need to protect the environment and reverse the large-scale degradation that has resulted over the years, priority being given to the environment over economic issues."

The Supreme Court noted that studies and documents showed that vehicular pollution has a devastating effect on public health in large cities in India and it, therefore, becomes the duty of the Court to direct that such steps are taken as are necessary to ensure clean air so that future generations do not suffer from ill-health. Quoting from research studies, the Supreme Court noted that there are serious health hazards of diesel exhaust emission. But if only the most harmful of exhaust emissions, that is particulate emissions are considered, the carcinogenic effect of one diesel car is equivalent to 24 petrol cars and 84 new CNG cars on the road. The Supreme Court noted that the material from the Automotive Research Association of India showed that emissions from CNG buses is far less than even Euro-IV standards. In the case of particulates, current CNG vehicles are 15 times better than Euro-II diesel vehicles and only Euro-IV diesel vehicles are comparable to CNG vehicles. Thus, the Supreme Court held that there was need to change to non-liquid fuel like CNG or LPG so as to improve "air quality in this country and not merely of Delhi" (para 33 at page 371). CNG, LPG and Electricity were held to be preferred technologies which critically polluted cities like Delhi need as a "leapfrogging technological option." Another advantage of CNG was that it cannot be adulterated. The Supreme Court issued a wide range directions including that : (i) priority be given to the supply of CNG to the transport sector all over India, in Delhi and any other polluted cities of India; (ii) costs of Rs.500/- and later Rs.1000/- per day were imposed on owners of diesel buses who continued to ply despite the Court's order; and (iii) National Capital Territory of Delhi was directed to phase out 800 diesel buses per month. The Mashelkar Committee whose report was before the Supreme Court had recommended that emission norms should be laid down and the choice of fuel should be left to the user. The Supreme Court held that emission norms were in place for a long period of time despite which the environment continued to deteriorate. Therefore, ruled the Supreme Court, it was "naive to ... except" that vehicular pollution would be checked merely by the formulation of emission norms.

14. Counsel appearing on behalf of the BEST Undertaking has sought to urge that the situation in Delhi was different from that in Mumbai and the model which found acceptance from the Supreme Court in relation to the National Capital Territory cannot apply to Mumbai. Now, there can be no gain saying the fact that the Court in considering whether appropriate directions should be issued and, in formulating directions must have regard to the problems which beset the metropolitan area of Mumbai which the Court is dealing with. Some of those problems may be peculiar to a particular area. But it is quite a different thing to urge, as does the BEST, that the problems of air pollution in Delhi are sui generis and that they have no parallel in the City of Mumbai. The Lal Committee was aware that the "Delhi experience cannot be simply replicated in Mumbai" but it correctly perceived that the action taken in Delhi on the basis of the recommendations of the Bhure Lal Committee and the orders of the Supreme Court are a valuable precedent. The judgment of the Supreme Court binds not only this Court but all authorities. Air pollution is not unique to Delhi and the problems which beset Delhi find a striking parallel in the urban metropolis of Mumbai. Undoubtedly, the Court will have to bear in mind the fact that the vehicles to which the directions of the Supreme Court were applied were critically polluting vehicles. The standards of maintenance which are followed by the BEST Undertaking must undoubtedly be borne in mind by the court in considering whether any directions are necessary and, if so, the nature of the directions that should be issued.

15. The judgment of the Supreme Court in M. C. Mehta (supra) is significant to the discourse in relation to the problems of vehicular pollution in Mumbai from more than one perspective. First, the Supreme Court has laid down that a mere formulation of emission standards is just not enough because levels of achievement in actual reality fall far short of the ideals which are prescribed. Second, vehicular pollution including its hazardous components such as Carbon monoxide, hydro carbons, carbon dioxide and particulates pose grave dangers to public health. Third, it is the duty of the Constitutional Court in discharge of its constitutional obligation to protect the right to life under Article 21 which includes the right to a clean environment; development must be sustainable and consistent with the precautionary principle. Fourth, alternative fuels such as CNG are preferred technologies and have a distinct and demonstrable potential to reduce hazards, particularly the carcinogenic potential of diesel emissions. Fifth, the efforts of the Government and all other authorities must be concentrated to ensure an adequate supply of CNG to the transport sector not merely in Delhi but in other polluted Cities of the country. These considerations, in our view apply with full force to the City of Mumbai. The Government of Maharashtra cannot stand aloof but must adopt a proactive role if it has to discharge its fundamental obligation to secure public health. To that extent, the BEST Undertaking is correct in submitting that a co-ordinated effort has to be made on the part of the Undertaking, the Government of Maharashtra, the Municipal Corporation of which the BEST is an arm and MGL. Unfortunately, the State Government has chosen to stand aloof in these proceedings and even the Learned Advocate General reported to the Court that despite several efforts made by him to persuade the authorities, the government cannot provide any financial support to the upgradation of the BEST fleet.

16. In holding that the BEST Undertaking must be held down to a concrete programme of action for reducing the extent of vehicular emission which result from the use of its buses, the Court has been mindful of a series of considerations.

First and foremost, the age profile of the buses belonging to the Undertaking would show that as of 1st January, 2003, 2692 out of 3380 buses plied by the Undertaking did not meet even the Euro-I norms. 80% of the fleet therefore, is not Euro-I compliant. 18% of the buses were Euro-I compliant; 1% Euro-II compliant and only 1.3% run on CNG.21% of the fleet is over 15 years old and over 60% more than 8 years old.

Secondly, from the statistics on emission that have been placed on the record by the Undertaking itself, it is apparent that even as between the Euro-I standard that is achievable by the Hino W06E engine and Euro-II standard achievable by a Hino W06 DTI engine, there is a significant reduction of emissions. Carbon monoxide levels of the Hino Euro-I engine are 1.48 g/kw hr as opposed to which the corresponding figure for the Hino Euro-II engine is 0.66 g/kw hr. In so far as particulate matter is concerned, for the Hino Euro-I engine, the corresponding figure is 0.252 g/kw hr and for the Hino Euro-II 0.11 g/kw hr. The reduction in hydrocarbons is from 0.34 to 0.30 g/kw hr and for nitrogen oxide from 7.33 to 6.13 g/kw hr.

The third important consideration is that the Undertaking does have a structured programme for the maintenance of its buses. The Lal Committee recognised that the buses of the Undertaking are not as critically polluting as for instance the other heavy vehicles in the transportation sector run by private operators. Consequently, while recognising that a large number of buses run by the Undertaking were not even Euro-I compliant, the Committee laid down a time schedule for upgradation which was far less stringent that than which was applied to other heavy vehicles in the transport sector.

The fourth important aspect which must be borne in mind by the Court is that the Undertaking has a long and well established retrofitment programme. Engines of existing buses are removed for overhaul after a stipulated distance and a fully overhauled engine is then replaced. The Government of Maharashtra has recognised the entitlement of the Undertaking to remove engines from existing buses without the permission of the registering authority and to issue Pollution Under Control certificates as well.

The fifth important feature which deserves emphasis is that in the course of several affidavits which have been filed in this Court, the Undertaking has recognised that CNG buses lead to a visible and precipitate decline of vehicular emissions and that as a matter of public interest and public duty, the Undertaking would purchase CNG buses. The Undertaking, however, has placed its problems before the court as a ground for subjecting it to a less stringent programme for the purchase of CNG buses than that which was envisaged by the Lal Committee. These operational difficulties include (i) the financial constraints of the Undertaking; (ii) the higher price of CNG in Mumbai, (iii) the space constraint as a result of which all the Depots of the Undertaking cannot be adapted for the installation of CNG filling stations; (iv) the higher filling time for CNG buses as opposed to diesel buses; (v) the lower range of a CNG bus as compared to a diesel bus; (vi) of difficulties in the installation of CNG engine on double decker buses and (vii) the price difference between a CNG bus and diesel bus. These constraints have to be dealt with by a co-ordinated effort on the part of the State Government, the Municipal Corporation and MGL. All the concerned authorities including the Government ought to co-operate in this regard with a view to promoting the salutary public interest which re-commendations such as those of the Lal Committee are designed to achieve. In so far as the financial difficulties of the Undertaking are concerned, these have been borne in mind by the Court in laying down an appropriately graded schedule for the upgradation of the fleet of the Undertaking. At the same time, it must be emphsised that economic considerations cannot have an absolute priority over public health. Financial stringency can absolutely be no answer or defence when any transporter, be it in a public or private sphere of activity is called upon to reduce and minimise the environmental hazards resulting from its operations.

17. In the present case, the BEST Undertaking has in the course of its submission before the Court shown a considerable degree of fairness in its approach. The Undertaking has placed on the record a fleet upgradation programme for the consideration of the Court. The upgradation programme involves various components including (i) a progressive phasing out of buses and transport vehicles; (ii) the addition of CNG buses progressively each year; and (iii) the retrofitment of existing buses with Euro-II engines. The statement which has been submitted before the Court is as follows:

"Fleet Upgradation Programme of the BEST Undertaking, Respondent No.12 above named before this Hon'ble Court.

1. To phase out all buses and other transport vehicles over the age of 18 years by 31-3-2008 i.e. within the next 5 years and replace them with Euro-II/CNG buses/transport vehicles of buses/transport vehicles of a higher applicable norm.

2. To add 50 CNG buses per year for 3 years starting from 2004-05 provided MGL installs additional dispensing capacity of 600 kg/hour for every 50 buses added.

3. To retrofit about 250 buses per year with Euro-II (BS II) engines so as to complete retrofitment on 1250 buses by 31-3-2009. This is, however, subject to the manufacturer supplying the required engines within time.

4. In view of the huge additional financial burden to be incurred by the BEST Transport Undertaking for such fleet upgradation and the absence of any financial support being extended by the MCGB or State Government, the BEST Undertaking shall be at liberty to forthwith levy an appropriate surcharge on the ticket price to finance fleet upgradation."

18. While the statement which has been submitted by the BEST Undertaking does represent an effort forward, the Undertaking must proceed with greater alacrity and speed. The report of the Lal Committee is of April, 2000. The Lal Committee contemplated that BEST buses over the age of 20 years shall be phased out from 1st January, 2001; those over the age of 15 years by 1st January, 2002 and those over the age of 8 years by 1st January, 2003 unless converted to run on CNG/LPG. The Lal Committee directed that with effect from 1st May, 2000 all new buses purchased should run on CNG/LPG until Euro-II compliant buses are available. By 1st April, 2005, the Lal Committee had expected that 1000 buses should operate on CNG. BEST has only 45 CNG buses on the road though at one stage both before the Lal Committee and this Court, it had stated that 171 CNG buses would be acquired during 2001-02. Those buses which are not even Euro-I compliant were to be retrofitted with Euro-II compliant engines by 1st October, 2002. The time schedule stipulated by the Lal Committee in several areas noted above has already expired with little progress. The Lal Committee found the situation to be "not acceptable" in April, 2000 and we hold that it is certainly not acceptable even today. The ageing fleet of the BEST must become environmentally compatible and incorporate CNG and Euro-II technology which even according to the statistics supplied by the Undertaking, will result in a drastic reduction of emission levels. In formulating our directions, we have adopted the statement furnished to the Court by the Undertaking with some modifications but laid down accelerated time schedules to achieve the ends.

19. Having regard to the all the relevant facts and circumstances including the financial and operational difficulties which have been placed before the Court by the BEST Undertaking we are of the view that the following directions would meet the ends of justice;

(1) The BEST Undertaking shall phase out all buses another transport vehicles over the age of 15 years by 1st January, 2006 and replace them with Euro-II/CNG buses and transport vehicles or buses/transport vehicles of a higher applicable norm :

(2) The BEST Undertaking shall induct into its fleet at least 100 CNG buses per year for a period six years commencing from the Financial Year 2004-05. In order to ensure that necessary facilities for dispensing CNG are made available, the State Government, BEST Undertaking and Mahanagar Gas Ltd. shall co-operate and take co-ordinated action so as to ensure that the aforesaid directions are complied with;

(3) The BEST Undertaking shall retrofit at least 250 buses with Euro-II (BS II) engines during the financial year 2004-2005, 300 buses during 2005-2006, buses during 2006-2007, and 400 buses during 2007-2008.

20. Before concluding, we would wish to record that though the Lal Committee had imposed three different sets of phasing out directions for BEST buses over the age of 20 years, 15 years and 8 years respectively, we are of the view that directions in regard to the phasing out the BEST buses should be confined to buses whose age is 15 years and above. In its submission before the Court, the Undertaking has fairly accepted that the average efficient life of an ordinary bus is about 15 years. Having regard to the statistics which have been placed on the record by the Undertaking in regard to the extent of the distance travelled on an average by the BEST buses each day, and the structured programme of maintenance of the Undertaking we are of the view that uniform directions for phasing out of its buses and transport vehicles above the age of 15 years should be imposed. Unlike other heavy transport vehicles which ply the road where it is impossible to monitor or regulate the observance of a punctilious programme of maintenance, material has been placed before the Court by BEST of the levels of maintenance which it follows. The case of the BEST Undertaking therefore, does not stand on the same footing as other heavy transport vehicles. In so far as the issue of retrofitment is concerned, Ashok Leyland who are manufacturers of buses and of Euro-II and CNG engines have confirmed on affidavit that retrofitment is possible with both Euro-II and CNG engines for BEST buses. BEST has expressed some apprehension about the statement of Ashok Leyland that it can retrofit 50 buses each month or 600 buses per year. We, have therefore, in the circumstances, directed that the retrofitment should be in a graded schedule commencing with 250 buses in 2004-2005 and progressively increasing thereafter. Though BEST has sought formal directions from the Court to the State Government to provide financial assistance to the Undertaking, conscious as we are of the limitations on the jurisdiction under Article 226, we do not propose to do so. We would only leave the matter by commending to government the need for it to support the initiative of the BEST Undertaking. Year after year, the Undertaking provides affordable means of transportation to nearly 40 lakh commuters each day in Mumbai. We are confident that the Government will not look askance.

Order accordingly.