Bharat Petroleum Corpn. Ltd vs Sunil Bansal & Ors

On 1.6.1999, the Central Government issued a

notification introducing Euro-I/Bharat Stage-I (BS-I)

emission norms, pursuant to which vehicles

manufactured after 1.6.1999 had to comply with BS-I

norms. The Central Government on 31.1.2000 issued

another notification introducing Euro-II/BS-II emission

norms, pursuant to which vehicles manufactured after

1.3.2000 had to comply with BS-II norms.

8. The clear interpretation of the notification dated

20.10.2004 was that the vehicles manufactured after

1.4.2005 and complying with BS-III norms and the

vehicles manufactured prior to 1.4.2005 complying with

BS-I and BS-II norms but not more than 15 years old

could ply within the National Capital Region. In the said

notification, an exception has been provide in respect of

four wheeled transport vehicles holding Inter-State 8

Permits or National Permits or All India Tourist Permits

but not complying with BS-III norms even though

manufactured on or after 1.4.2005, which exception

would apply only if such vehicles were plying on the

Inter-State Routes beyond the National Capital Region. In

other words, such vehicles could not ply within the

National Capital Region and other cities mentioned in the

notification.

9. The appellant Bharat Petroleum Corporation

Limited, in view of the legal position, on 30.3.2007,

issued notice inviting tenders for transportation of

Liquefied Petroleum Gas (LPG) Cylinders within the

National Capital Region from its bottling plant at Piyala

in Bahadurgarh to its Badarpur Depot and therefrom to

the godowns of its LPG distributors within Delhi.

Clauses 9.3 (a) and 9.3(b) of the special terms of contract

of the Notice inviting tenders prescribed that the trucks

offered for Delhi should comply with BS-III emission

norms if manufactured on or after 1.4.2005 and the age

of the truck should not be more than 12 years from the 9

month of floating of the Notice inviting tenders as would

appear from the "Registration Certificate Book" of the

truck.

10. It may be pertinent to mention that respondent no.1

filed a writ petition No.2882 of 2007 in the High Court of

Delhi challenging the eligibility criteria of the trucks to be

offered by the bidders. The Delhi High Court on

10.5.2007 dismissed the said writ petition holding inter

alia that respondent no.1 had not been able to make out

a case for interference in the exercise of writ jurisdiction.

It could not be said that the tender conditions as framed

by the appellant Bharat Petroleum Corporation Limited

are violative of the norms and notifications issued under

the Central Motor Vehicles Rules or the directions of the

Supreme Court. The decision to permit vehicles which

are less than 15 years old, even if they do not conform to

BS-II norms subject to the condition that no fresh

registration of vehicles not conforming to Bharat Stage-II

norms would be granted after 24.10.2001 and the

vehicles registered after 1.4.2005 would conform to BS-III 10

norms is intended to phase out old vehicles in a

progressive manner while addressing the concern of

adhering to the emission norms to control vehicular

pollution.

11. Respondent no.1 on 27.7.2007 filed another writ

petition no.5532 of 2007 praying inter alia for directions

to the appellant Bharat Petroleum Corporation Limited to

call and include the companies/firms owned by

respondent no.1 and his brothers to participate in the

price bids; for directions to the appellant Bharat

Petroleum Corporation Limited not to exclude the

companies/firms owned by respondent no.1 and his

brothers from the price bids on the wrong assumption

and interpretation of clause 9.3(b) of the standard terms

& conditions of the notice inviting tenders.

12. The Central Government on 20.1.2009 issued a

notification making the Central Motor Vehicles (First

Amendment) Rules, 2009 for amendment of the Central

Motor Vehicle Rules, 1989. In the Amendment Rules of

2009, a proviso was added to sub-rule (7) of Rule 90 of 11

the Central Motor Vehicles Rules, 1989. The said proviso

provides that where `such' vehicle is registered in the

National Capital Region, it shall not pick-up or set down

goods between two points situated in the National Capital

Region unless it conforms to the mass emission

standards (BS-III) specified in sub-rule (14) of Rule 115.

13. According to the interpretation of the notification

dated 20.10.2004, the Delhi High Court found that "it is

clear that a vehicle compliant with Bharat Stage-III

norms possessing a National or Inter-State Permit may

ply in the National Capital Region or Delhi, more so when

vehicles older and less efficient and manufactured prior

to that date are permitted to ply on the Delhi roads." The

court further held that the "interpretation" sought to be

given by respondent no.1 to the relevant Rules would

also lead to absurd results, if implemented. The result

would be that while respondent no.1 would entertain the

bids in respect of goods carriage which are not even

Bharat Stage-I compliant or are Bharat Stage-I and II

compliant and are manufactured before 1.4.2005, it 12

would not entertain bids in respect of goods carriage

which are relatively new and are manufactured after

1.4.2005 and are also Euro-II/Bharat Stage-II compliant

14. According to the appellant, the High Court has

misconstrued and misread the notification dated

20.10.2004 which was made expressly for the purpose of

controlling pollution within the National Capital Region

in stages. The fact of older vehicles manufactured prior

to 1.4.2005 being permitted to ply does not militate or

discriminate against the prohibition of plying vehicles

manufactured after 1.4.2005 which were not Bharat

Stage-III complaint, because they fell in different classes.

The classification was necessitated on account of the fact

that all vehicles could not have been prohibited from

plying in one stroke as that would have created total

chaos in the National Capital Region.

15. The appellant also submitted that the policy behind

the notification was that in future, older vehicles would

be phased out on completion of 12 years from their date

of manufacture automatically and newer vehicles would 13

necessarily have to comply with Bharat Stage-III norms

so that gradually the emission norms would improve and

in 12 years all vehicles would be at least Bharat Stage-III

compliant. The appellant submitted that the notification

dated 20.1.2009 issued by the Central Government

adding the following proviso to sub-rule 7 of Rule 90

the Central Motor Vehicles Rules :

"Provided that where such vehicle is registered in the National Capital Region, it shall not pick up or set down goods between two points situated in the National Capital Region unless it conforms to the mass emission standards (Bharat Stage-III) specified in sub-rule (14) of rule 115."

16. According to the appellant, the clarificatory

amendment made it abundantly clear that even vehicles

possessing a national permit, but manufactured after

1.4.2005 cannot ply within the National Capital Region

unless they are Bharat Stage-III compliant. According to

the appellant, this classification subserves the object of

the notification, namely, the gradual improvement of the

environment in the National Capital Region by providing

for a gradual induction of Bharat Stage-III emission 14

norms compliant vehicles and gradual phasing out of the

old vehicles simultaneously. Therefore, there is a clear

nexus of the classification with the object of the

legislation.

17. The appellant has placed reliance on the judgment

of this court in Harakchand Ratanchand Banthia &

Others etc. v. Union of India & Others (1969) 2 SCC

166 para 26 wherein the court held thus:

"26.......When a law is challenged as violative of Article 14 of the Constitution it is necessary in the first place to ascertain the policy underlying the statute and the object intended to be achieved by it. Having ascertained the policy and object of the Act the Court has to apply a dual test in examining its validity (1) whether the classification is rational and based upon an intelligible differentia which distinguishes persons or things that are grouped together from others that are left out of the group and (2) whether the basis of differentiation has any rational nexus or relation with its avowed policy and object...."

18. The appellant submitted that respondent no.1 in fact

purchased the vehicles which do not conform with

Bharat Stage-III norms even though they had been 15

manufactured after the notification dated 20.10.2004

and sought to circumvent it by getting national permits.

19. In other words, the main submission of the

appellant has been that the entire notification is meant to

achieve the object of reducing pollution in consonance

with the directions issued by this court. The said

directions cannot be defeated by merely obtaining

National, Inter-State or All India Tourist Permits.

According to the appellant, the notification makes it

crystal clear that the vehicles can ply in Delhi which are

manufactured on or after 1.4.2005 complying with BS-III

emission norms. According to the appellant after the

notification date 20.10.2004, there is no room for any

controversy and the High Court has totally misread and

misconstrued the notification and consequently, the

judgment of the High Court is, therefore, liable to be set

aside.

20. The respondent submitted that vide notification

GSR 686-(E) dated 20th October, 2004 issued by the 16

Central Government Euro-III/Bharat Stage-III Emission

norms were introduced only in few cities including the

National Capital Region. As per the said notification

vehicles manufactured after 1.4.2005 had to comply with

emission norms of Euro-III/B.S.-III. An exception was

provided to such notification according to which the

vehicles getting a registration under the Inter-State

Permits or National Permits or All India Tourist Permits

within the National Capital Region and certain other

selected cities were exempted from the compliance of

Bharat Stage-III emission norms and they were allowed

to be governed by Bharat Stage-II emission norms. This

was done for reason, the petroleum companies could not

provide fuel required for the Euro-III vehicle all over

India, as such national permit vehicles had to travel

through many cities where such notification was not

applicable. Therefore, such exemption was given only to

the vehicles which were moving/plying outside the cities

where the present notification was not applicable. 17

21. According to the respondents, the combined reading

of the aforesaid notifications and the judgment, it can be

said that the vehicles even if they do not conform to

Euro-I/Bharat Stage-I emissions norms if manufactured

prior to 1.6.1999 and within 15 years can ply as per their

permits. The decision to allow such vehicles which are

less than 15 years old, even if they do not conform to any

of the emissions norms, is intended to phase out old

vehicles in progressive manner while addressing the

concern of adhering to emission norms to control

vehicular pollution by not allowing any fresh registration

of vehicles which are not conforming to emissions norms

applicable according to their manufacturing date.

22. We have heard the learned counsel for the parties at

length and carefully perused the impugned judgment,

provisions of the Act, relevant notifications and the Motor

Vehicles Rules.

23. The entire controversy has to be properly

comprehended in proper perspective. The notifications

issued by the Central Government were issued in 18

pursuant to the directions of this court to achieve the

object of reducing pollution in the National Capital

Region. As per the clear interpretation of the notification

in issue, only those vehicles will ply in National Capital

Region which were manufactured on or after 1.4.2005

and are complying with BS-III norms. The vehicles

manufactured prior to 1.4.2005 and complying with BS-I

and BS-II norms but are not more than 15 years old can

also ply. This notification was issued to reduce vehicular

pollution in a phased manner. By one stroke, the

legislature could not have prohibited all vehicles plying in

the city which did not have BS-III compliant as that

would have created total chaos, therefore, it was

introduced in a phased manner as has been done in the

impugned notification.

24. The High Court by its impugned judgment dated

29.10.2007 has held that respondent no.1 herein is

entitled to participate in the tender process initiated by

the appellant herein, offering four wheeled vehicles

manufactured on or after 1.4.2005 which are Euro-II/ 19

Bharat Stage-II compliant and having national permits/

Inter-state permits.

25. However, a perusal of the notification in question

i.e. GSR 686 (E) dated 20.10.2004 which was issued for

the purpose of controlling pollution within the National

Capital Region in phased manner, makes it quite clear

that the vehicles manufactured prior to 1.4.2005 being

permitted to ply does not anyway militate or discriminate

against the prohibition of plying vehicles manufactured

after 1.4.2005 which were not Bharat Stage-III compliant

as they clearly fell in different classes. Further, the other

notification GSR 37(E) dated 20.1.2009 which inter-alia

inserts proviso to sub-rule (7) in Rule 90 clarifies that

where such vehicle is registered in the National Capital

Region, it shall not pick up or set down goods between

two points situated in the National Capital Region unless

it conforms to the mass emission standards (Bharat

Stage-III).

26. The aforesaid classification is essential in view of

the fact that all vehicles could not have been prohibited 20

from plying on road in one stroke. Therefore, there is a

clear nexus of the classification with the objects sought

to be achieved by the legislation. The rationale behind

the aforesaid notification is to phase out the older

vehicles automatically in due course and newer vehicles

would necessarily have to comply with Bharat Stage-III

norms in order to gradually increase the emission norms

thereby curbing air pollution as per the directions issued

by this Court in M.C. Mehta's case (supra). Clearly, the

aforesaid classification in the notification intends to

gradually improve the environment by providing a

mechanism for a gradual induction of Bharat-III emission

norms. In view of the same, if we accept the contention of

the respondent the same would amount to negation of

the direction of this Court in M.C. Mehta's case (supra)

and would also frustrate the effect of the notifications

dated 20.10.2004 and 20.1.2009. Further, in the

absence of any challenge to the validity of the proviso to

sub-rule (7) of Rule 90 inserted by Notification dated

20.1.2009, the said provision has to be held valid and 21

must be given full effect. It is to be noted that the view

we have taken here is the only possible and intended

view which can be inferred from a reading of the

amended provisions which is of clarificatory nature.

27. In our considered view, the High Court has misread

and misconstrued the notification. Consequently, the

appeal is allowed and the impugned judgment of the High

Court is set aside.

28. In the facts and circumstances of the case, the

parties are directed to bear their own costs.

........................................J. (Dalveer Bhandari)

.......................................J. (Dr. Mukundakam Sharma) New Delhi, September 18, 2009.