Full Judgment Text
2024 INSC 31
NonReportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3798 OF 2019
Container Corporation of India Ltd. … Appellant
Versus
Ajay Khera & Ors. … Respondents
J U D G M E N T
ABHAY S. OKA, J.
FACTUAL ASPECTS
1. The first respondent, a former Executive Director of the
Central Warehousing Corporation, approached the National
Green Tribunal (for short, ‘the NGT’) by filing an original
application. The first respondent filed the original application
under Section 14, read with Section 15 and Section 18(1) of
the National Green Tribunal Act, 2010 and raised an
important issue of the pollution created by the Inland
Signature Not Verified
Container Depot (for short, ‘the said ICD’) at Tughlakabad. It
Digitally signed by
Anita Malhotra
Date: 2024.01.11
16:44:14 IST
Reason:
is alleged in the application that the said ICD is used by the
Civil Appeal no.3798 of 2019 Page 1 of 13
trucks/trailers not destined for Delhi and is used for
delivery/pick up to and from locations outside Delhi. He
pointed out that due to the inflow of a large number of
trucks/trailers to the said ICD, the air pollution in Delhi NCR
has substantially increased due to the emission from
trucks/trailers. He contended that there are other ICDs
around Delhi, and therefore, it is quite possible to divert the
inflow of trucks/trailers to the other ICDs around Delhi NCR.
The first respondent, thus, prayed for a direction to the
appellant the Container Corporation of India Ltd. (for short,
‘the Container Corporation’) and the Railway Board to shift
the operations of the said ICD at Tughlakabad which are not
bound for Delhi to other locations outside Delhi. The second
direction was to prohibit entry of containers/trailers at the
said ICD, Tughlakabad, which are not bound for Delhi and
only to utilise CNG run/battery operated Fork Lifts/empty
Handlers and small vehicles, as also run electric trains rather
than diesel locomotives in and out of the said ICD.
2. The appellant (The Container Corporation) contested the
said application. It was pointed out that the movement of
cargo destined for consumption in Delhi is made by railway
lines which terminate inside the premises of the said ICD. If
the use of the said ICD is diverted, it would mean that there
would be more movement of cargo on roads from various
ports in India to Delhi, which will increase the distance
covered by the cargo trucks. This movement of cargo on the
roads will lead to more pollution. A contention was raised
Civil Appeal no.3798 of 2019 Page 2 of 13
that the said ICD is ideally located to cater for the needs of
the population of Delhi without disturbing the residential
areas of Delhi.
3. The NGT passed interim orders on the application filed
by the first respondent from time to time. By the impugned
th
order dated 8 March 2019, the NGT passed an order
directing the appellant to ensure that, in a phased manner,
diesel vehicles stop visiting the ICD and shift to electric,
hybrid and CNG vehicles. The Tribunal observed that the
other alternative was to limit the entry of diesel vehicles only
to the satellite terminals (ICDs) at Dadri, Rewari, Ballabhgarh,
Khatuawas or any other ICD around Delhi. The Tribunal
observed that this will ensure that diesel vehicles do not enter
Delhi NCR. An outer limit of six months was fixed under the
impugned order by the NGT to comply with the directions
above. An action plan was ordered to be filed within one
month.
nd
4. On 22 April 2019, this Court issued notice on the
present appeal and directed that no coercive action shall be
taken against the appellant based on the impugned order. On
th
10 February 2020, when this Court noticed that no solution
was forthcoming, a direction was issued to the Environment
Pollution (Prevention and Control) Authority (‘EPCA’) to look
into the issues raised in the appeal and to file a report
containing its recommendations. We may note here that
EPCA has been set up under the orders of this Court to
Civil Appeal no.3798 of 2019 Page 3 of 13
protect and improve the quality of the environment in Delhi
NCR.
Under the aforesaid direction of this Court, EPCA
5.
th
submitted a report way back on 30 June 2020. A response
is filed by the first respondent to the recommendations
contained in the said report. An affidavit has been filed by
the Ministry of Railways, putting on record its stand
concerning the recommendations contained in the report.
Written submissions have been filed by the appellant
containing its response to the recommendations of EPCA and
setting out the steps taken by the appellant pursuant to the
recommendations. The hearing before this Court was
confined to the recommendations made by the EPCA. We
have heard the learned counsel appearing for the parties on
the said report.
The issue of pollution, particularly air pollution, has
6.
been a cause of concern for the last few decades. Air
pollution directly affects the fundamental rights of the citizens
guaranteed under Article 21 of the Constitution of India. The
right to life guaranteed under Article 21 includes the right to
live in a pollutionfree environment. The issue of air pollution
is of a great deal of importance to every citizen. Air pollution
affects citizens' quality of life. It adversely affects health. This
issue is more significant in the context of the severe air
pollution faced by Delhi NCT and Delhi NCR areas during the
last few years. For the last few months, the air quality index
Civil Appeal no.3798 of 2019 Page 4 of 13
in the said areas has been in the category of very unhealthy
or hazardous.
Now, we turn to the report submitted by EPCA. By way
7.
of illustration, the report contains the figures of vehicles
entering the said ICD in January 2020. The report records
that 22,082 vehicles entered the said ICD, out of which 75%
of the vehicles (16,562) were bigger vehicles using diesel, with
an average capacity of 19 metric tons. Only 25% were CNG
vehicles, having an average capacity of 6 metric tons. It
records that the number of diesel vehicles entering the said
ICD daily was 534. These figures must be appreciated in light
of the pollution inventory done by the IIT, Kanpur, in 2016.
The inventory revealed that the trucks entering Delhi
contribute roughly half of the total pollution caused by the
vehicles in the city. That is why this Court has repeatedly
issued directions for preventing air pollution in Delhi NCR.
8. A positive feature recorded in the EPCA report is that
the total quantity of goods transiting through the said ICD
from 201415 has gradually decreased. In the financial year
201415, the total quantity of goods entering ICD was
4,26,144 TEUs, which was reduced to 3,10,399 in the
financial year 20192020. One TEU is equivalent to the
carrying capacity of a 20footlong container. The submission
made across the Bar is that the downward trend continues.
Broadly, the EPCA considered three issues:
9.
Civil Appeal no.3798 of 2019 Page 5 of 13
a. The feasibility of shifting to CNG/electric/hybrid
vehicles as directed by the NGT by the impugned
order;
b. The issue of restricting and reducing the entry of
nondestined diesel vehicles at the said ICD and the
issue of diverting nondestined diesel vehicles to
nearby ICDs; and
The problem created by congestion and lack of
c.
adequate parking facilities at ICDs.
Before we deal with the recommendations and the stand
10.
taken by the parties, it is necessary to understand the
significance of an ICD or a dry port in the transportation and
logistics chain. An ICD is a facility created in an inland part
which serves as a containerised cargo handling hub for
imports and exports of the region. It is an intermodal terminal
that provides direct connectivity to a seaport. The customs
department recognises it as an extended part of the seaports.
It serves as a facility that offers services for handling and
temporarily storing import/exportladen containers. It is
connected to ports via railway transport. All facilities, such as
obtaining custom clearances, cargo aggregation, cargo storage
and other storage identical to a marine port, are available at
these dry ports. In short, ICDs enable access to cargo
handling facilities of a port at the doorstep of the importers
and exporters. It also allows the consolidation of the cargo
closer to its origin or destination to reduce the fragmented
Civil Appeal no.3798 of 2019 Page 6 of 13
movement and multiple handling of the cargo. As is brought
on record, there are two establishments of the Customs
Department in the said ICD, and there is a connection of
railway lines available in the ICD itself.
11. Now, coming to the recommendations of the EPCA,
while accepting the need to shift vehicles to cleaner fuels like
CNG/Hybrid/Electric, the EPCA observed that there are
limitations in the technology. It is noted that no alternative
fuel technology is available for the category of heavyduty
vehicles used for transporting containers. It is observed that
the availability of alternative fuel in longdistance travel
across India is often a constraint. Therefore, the EPCA
recommended using BSVI heavyduty diesel vehicles as they
are substantially cleaner than BSIV heavyduty vehicles.
Therefore, a suggestion was made that the Ministry of
Transport and Highways should come out with an effective
and robust policy for the scrappage of heavyduty diesel
vehicles and their replacement with BSVI vehicles. In his
response, the first respondent stated that the above
recommendation must be accepted with a rider that exploring
other fuel sources, including CNG/Hybrid/Electric, should
continue. Indeed, technology is everimproving. Therefore,
while adopting the aforesaid recommendation, we must clarify
that a constant endeavour needs to be made to ascertain
whether better fuel sources can be successfully utilised for
the heavyduty vehicles which enter the said ICD.
Civil Appeal no.3798 of 2019 Page 7 of 13
12. On the second issue, the EPCA noted in the report that
seven such facilities, including the said ICD, are near Delhi.
Based on the figures incorporated in the report, it is noted
that only the said ICD and the ICD at Rewari are being
utilised to the extent of 60% or more of their capacity, while
the others remain underutilised. Therefore, EPCA
recommended that the appellant should formulate a plan for
optimal utilisation of ICDs around Delhi, which will eventually
reduce the use of said ICD.
13. We may note another reason why the said ICD is
preferred. It is brought on record that some of the central
laboratories, drug controller offices, etc., are located in Delhi,
where the lab testing of the imported goods is done before
clearance from customs. Therefore, a recommendation was
made to direct the appellant to work with certified agencies
and laboratories to extend their services to the ICDs outside
Delhi so that the infrastructure in other ICDs around Delhi
does not remain underutilised by exporters/importers.
Regarding parking for the trucks and trailers, the report
14.
records that the facility for parking 940 trucks/trailers is
available, but parking is still haphazardly made, leading to
congestion and pollution.
15. In the first respondent's response to the
recommendations, it is pointed out that the initial capacity of
the said ICD was only 1,26,000 TEUs. However, the said ICD
has operated with 4,50,000 TEUs. Reliance was placed on
Civil Appeal no.3798 of 2019 Page 8 of 13
the provisions of the Handling of Cargo in Areas Regulation,
2009, which provide that safe, secure and spacious premises
for loading, unloading, handling and storing of the cargo for
the projected capacity has to be set up by the user agency to
the satisfaction of the Commissioner of Customs. A grievance
has been made that data showing the implementation of the
said Regulations has not been placed on record.
16. The recommendations made by EPCA have been
summarised on pages 14 and 15 of the report, which reads
thus:
“On the issue of shift to
CNG/Hybrid/Electric
3.1 May consider that shift to
CNG/Hybrid/Electric, however desirable,
is not feasible in this segment of vehicles.
May instead direct the Ministry of Road
Transport and Highways (MoRTH) to
present an effective and robust policy for
scrappage of heavyduty diesel vehicles
and replacement with BS VI vehicles,
which are substantially cleaner and will
greatly reduce pollution in the entire
airshed.
On the issue of restricting growth of
heavyduty vehicles at ICD/TKD
3.2 May consider directing CONCOR to
give a plan for the optimal utilisation of
the inland container depots garlanding
Delhi and what will be proposed increase
in throughput in these depots in the
coming years and consequently how the
reduction in throughput in ICD/TKD will
be operationalised.
Civil Appeal no.3798 of 2019 Page 9 of 13
3.3 May direct CONCOR to work with
certifying agencies and laboratories to
work out the necessary extension of their
services to the inland container depots
outside Delhi so that business can utilise
this infrastructure with convenience.
On the issue of parking
3.4 May consider directing CONCOR to
provide a timebound plan for upgrading
the parking/holding area by optimizing on
the space it has inside the depot and to
work with agencies to provide adequate
holding space outside the depot.”
17. We may mention here that the appellant, the first
respondent and Ministry of Railways have, in principle,
agreed that the recommendations of EPCA need acceptance.
After perusing the pleadings, affidavits, and documents on
record, we are of the view that the recommendations must be
accepted and implemented in terms of the directions that we
propose to issue.
However, timelines will have to be fixed. As regards
18.
recommendation 3.1, we propose to grant the Ministry of
Road Transport and Highways six months to come out with a
policy on the replacement of heavyduty diesel vehicles with
BSVI vehicles. While we do so, we make it clear that with
everadvancing technology, constant endeavour to explore the
availability of other fuel resources that could be used for
heavyduty vehicles should always continue.
Civil Appeal no.3798 of 2019 Page 10 of 13
19. Regarding recommendation 3.2, we propose to direct the
appellant to formulate a comprehensive plan within six
months from today. Regarding recommendation 3.3, the
appellant will have to approach various authorities which
have provided laboratories in Delhi to set up similar facilities
near the other ICDs around Delhi NCR.
20. Regarding recommendation 3.4, in the written
submissions, the appellant has brought on record that the
appellant had appointed an expert agency, KPMG, to make
recommendations on the problem of congestion and parking
inside the said ICD. A copy of KPMG's report is placed on
record with an assurance that the appellant is undertaking
measures to implement the recommendations made by
KPMG.
Before we part with the judgment, we must say
21.
something about an option mentioned by the NGT in
paragraph 7 of the impugned order. The NGT has
inter alia
observed that there is an option to restrict the entry of diesel
vehicles in the said ICDs at Tughlakabad by diverting these
vehicles to the ICDs at Dadri, Rewari, Ballabhgarh,
Khatuawas or any other ICD around Delhi so as to control the
pollution in Delhi NCR, as if only the people living in Delhi
NCR alone are entitled to pollution free atmosphere and not
those living in other parts of the country. Such an observation
by the NGT is in complete ignorance of the fact that citizens
living in other parts of the country other than Delhi NCR also
Civil Appeal no.3798 of 2019 Page 11 of 13
have a fundamental right to a pollution free environment as
guaranteed by Article 21 of the Constitution of India. Such a
fundamental right is equally enforceable by all and is not
confined to the people of Delhi NCR. The NGT while
protecting/safeguarding the above fundamental right of the
people of Delhi NCR cannot allow infringement of the same
fundamental right of the citizens living outside Delhi NCR.
The observation of the NGT is totally unjustified and
unwarranted.
Hence, we dispose of the appeal by passing the following
22.
directions in substitution of the directions in the impugned
order:
After examining recommendation 3.1, the Union of India
a.
shall formulate a policy of phasing out heavyduty diesel
vehicles and replacing them with BSVI vehicles. The
Union of India shall formulate appropriate policy on this
behalf within six months from today;
b. Though the Union of India is a party through the
Ministry of Environment, Forest and Climate Change,
the Ministry of Road Transport and Highways is not
formally made a party. We, therefore, direct the Registry
to forward a copy of this order to the Secretary of the
Ministry of Road Transport and Highways.
c. The process of exploring the possibility of finding better
sources, including CNG/Hybrid/Electric, for the use of
heavyduty vehicles shall continue;
Civil Appeal no.3798 of 2019 Page 12 of 13
d. The plan for optimal utilisation of ICDs around Delhi, in
terms of recommendation no. 3.2 shall be formulated by
the appellant within six months from today. In the
meanwhile, the appellant will coordinate with all the
official agencies to enable the setting up of central
laboratories near ICDs around Delhi NCR;
e. We direct the appellant to implement the
recommendations made by KPMG in February 2021 for
improving the parking management of vehicles in the
said ICD. We grant time of six months to the appellant
to implement the recommendations of the KPMG;
The appeal is disposed of on the above terms.
23.
24. Though we are disposing of the appeal with the above
directions, we make it clear that this Court will monitor the
implementation of the above directions. Therefore, we direct
that this appeal be listed on 31st July 2024 for reporting
compliance by the appellant and the Ministry of Transport
and Highways.
….…………………….J.
(Abhay S. Oka)
…..…………………...J.
(Pankaj Mithal)
New Delhi;
January 11, 2024.
Civil Appeal no.3798 of 2019 Page 13 of 13