Farooque v. Government of Bangladesh WP 300 of 1995 (2002.02) (Vehicle Pollution Case: Use of CNG)

IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION (SPECIAL ORIGINAL JURISDICTION)

WRIT PETITION NO. 300 OF 1995.
IN THE MATTER OF:
An application for direction. IN THE MATTER OF: Bangladesh Environmental Lawyers Association (BELA), represented by Syeda Rizwana Hasan, Director (Programs) and Member, Executive Committee, BELA of House # 9, Road # 8, Dhanmondi Residential Area, Dhaka.
……. Petitioner

-Versus-

1. Bangladesh, represented by the Secretary, Ministry of Communication, Government of the People`s Republic of Bangladesh, Bangladesh Secretariat, P.S. Ramna, Dhaka.

2. The Chairman, Bangladesh Road Transport Authority, Allen Bari, Old Airport Road, P.S. Tejgaon, Dhaka.

3. The Secretary, Ministry of Home Affairs, Govt. of the People`s Republic of Bangladesh, Bangladesh Secretariat, P.S. Ramna, Dhaka.

4. The Commissioner, Dhaka Metropolitan Police, 27, Park Avenue, P.S. Ramna, Dhaka.

5. The Secretary, Ministry of Environment and Forest, Govt. of the People`s Republic of Bangladesh, Bangladesh Secretariat, P.S. Ramna, Dhaka.

6. The Director General, Department of Environment, 16-E Agargoan, Sher-e-Banglanagar, Dhaka.

7. The Dhaka City Corporation, represented by its Mayor, Nagar Bhaban, P.S. Ramna, Dhaka.

8. The Secretary, Ministry of Health & Family Welfare, Govt. of the People`s Republic of Bangladesh, Bangladesh Secretariat, P.S. Ramna, Dhaka.

9. The Secretary, Ministry of Commerce, Govt. of the People`s Republic of Bangladesh, Bangladesh Secretariat, P.S. Ramna, Dhaka.

10. The Secretary, Ministry of Energy and Mineral Resources, Govt. of the People`s Republic of Bangladesh, Bangladesh Secretariat, P.S. Ramna, Dhaka.

11. The Bangladesh Petroleum Corporation, represented by its Chairman, 1/D Agrabad C/A, Chittagong.

12. The Secretary, Ministry of Industries, Bangladesh Secretariat, P.S. Ramna, Dhaka.

13. The Bangladesh Standards and Testing Institution, represented by its Director General, 116/A Tejgaon Industrial Area, P.S. Tejgaon, Dhaka.

14. Bangladesh, represented by the Secretary, Ministry of Establishment, Government of the People`s Republic of Bangladesh, Bangladesh Secretariat, P.S. Ramna, Dhaka………Respondents.

To Mr. Justice Mahmudul Amin Chowdhury, the Chief Justice of Bangladesh and his companion Justices of the said Hon`ble Court.
The humble petition of the above named petitioner most respectfully –

S H E W E T H :

1. That on 14 March, 1995 the Petitioner filed this writ petition seeking redress against environmental pollution created by motor vehicles through emission of hazardous smoke and use of prohibited pneumatic horn.

2. That on 29th March, 1995 the Hon’ble Court was pleased to issue the following Rule upon the Respondent Nos. 2 and 4:
“a Rule Nisi calling upon the Respondent No. 2 the Chairman, Bangladesh Road Transport Authority, and Respondent No. 4, the Commissioner, Dhaka Metropolitan Police to show cause as to why they should not be directed to take effective measures as provided in Motor Vehicles Ordinance, 1983 to check pollution caused due to the emission of hazardous smokes for motor vehicles and the use of audible signaling devices which are unduly harsh, shrill, loud or alarming noise or such other further order or orders passed as to this court may deem fit and proper.”

3. That similar Rule was issued upon the respondent No. 6 on 30 January, 1997 and subsequently by this Hon`ble Court upon respondent Nos. 1, 3, 5, 9, 10 and
12 on 30 April, 2001 upon application of the Petitioner. Notices have been duly served upon all the concerned respondents.

4. That during the hearing of the above Writ Petition before the bench comprising Mr. Justice M. M. Ruhul Amin and Mr. Justice Khademul Islam Chowdhury, the Petitioner read out a number of important decisions taken by the respondents to check the severity of vehicular pollution caused by emission of hazardous smoke both from private and public transport. These decisions include among others, the conversion of all government owned vehicles into Compressed Natural Gas (hereafter referred to as CNG) and phasing out of two stroke three wheelers within a given time frame. All these decisions have important bearing upon the Rule and having not been duly implemented by the respondents within the time limit so framed need appropriate judicial consideration for ends of justice and effective disposal of the Rule in greater public interest.

5. That the issue of conversion of petrol/diesel driven motor vehicles into CNG was taken up for decision in the second meeting of the National Environment Committee held on 04-05-97 being presided over by the then Prime Minister of the country (as of Annexure “O”). The said meeting after having elaborate discussion on the prospect of using CNG in motor vehicles decided to convert the petrol/diesel driven vehicles into CNG and in the first phase convert all government owned vehicles into CNG (item “c”). A subsequent meeting held on 07 March, 1999 at the Ministry of Finance (Annexure “Q”) discussed the issue of conversion of petrol/ diesel engine into CNG and held the respondent no. 10, the Secretary, Ministry of Energy and Mineral Resources as responsible for setting up of new CNG refueling stations to meet demands for CNG needed to facilitate conversion of petrol and diesel driven vehicles in to CNG .

6. That meanwhile the said respondent No. 10 submitted a project proposal titled “CNG Project to Arrest Environmental Pollution” proposing to procure and install six (06) CNG refueling stations in the Dhaka City. The said proposal of the respondent No. 10 was approved in the meeting of the Executive Committee of National Economic Council (ECNEC) on 25-04-2000 and as noted in the project proforma, all the six CNG refueling station was scheduled to be set up by June, 2001.

Copy of the project proforma of the respondent No. 10 is annexed hereto and marked as Annexure ” Z “.

7. The project proforma of the said proposal of respondent No. 10 (as of Annexure “Z”) in express terms recognized the cost-effectiveness, technical feasibility, commercial viability and environmental friendliness of CNG as vehicle fuel and also admitted the need for more CNG refueling stations in Dhaka in view of increased interest for conversion into CNG. Referring to the opinion of the experts, the leading dailies of the country have also stated that if the use of CNG is encouraged and facilitated as fuel for motor vehicles, it can significantly reduce pollution and save a total of taka one thousand crore every year from the energy sector.

Copies of the newspaper clippings reporting on the cost-effectiveness of CNG are annexed hereto and marked as Annexure “Z-1” series.

8. That despite placing such emphasis on conversion of petrol/diesel motor vehicles into CNG, only a total of 1,575 vehicles have thus far been converted into CNG (as per supplementary affidavit-in-opposition filed by respondent No. 5) which are being served by 4 existing refueling stations only (as of Annexure “O”). Thus it will be evident that the actual actions required to promote use of CNG in petrol/diesel driven vehicles to check vehicular pollution have suffered due to lack of commitment from the respondents and the six new CNG refueling stations as proposed by the respondent No. 10 are yet to be set up for which an appropriate direction from this Hon`ble Court is prayed for.

9. That in addition to promote the use of CNG in motor vehicles, the second meeting of the National Environment Committee held on 04-05-97 (Annexure “O”) also decided to extensively review the issue of imposing ban on the importation of two stroked engine vehicles and gradually phase out the existing two stroked engine vehicles to control poisonous emission therefrom (item “g”). A subsequent meeting held on 19 April, 1999 at the office of the Respondent No. 9, Secretary, Ministry of Commerce (as of Annexure “R”) recommended to prohibit the plying of such two-stroked engine vehicles in the City of Dhaka from the year 2001.

10. That the recommendation for prohibiting the plying of two stroked engine three wheelers in the capital could not be materialized within the time frame in the absence of specific and detailed action plan on the same. Subsequently the period for imposing such ban on playing of two stroked three wheelers in the City was extended upto July, 2003.

11. That meanwhile, following some recent decisions as reported in the news media and also stated in the supplementary affidavit-in-opposition filed by the respondent No. 5, a great deal of confusion has been created as to the actual time frame within which such vehicles emitting hazardous smoke shall be removed/phased out from the roads of the Capital City. In a recent bid, the respondent No. 1 declared some controlling measures to check the plying of such existing two stroked three wheelers on the roads of Dhaka. As reported in the print media such controlling measures would require 22 thousand two-stroked three wheelers to be withdrawn from the roads of Dhaka City within 31 January, 2002 while the rest 10 thousand would also be withdrawn within the following six months. Such controlling measures created agitation amongst the drivers and owners of such vehicles who called for an indefinite strike from 30 January, 2002 demanding withdrawal of the said controlling measures. Finally, following a discussion with the respondent No. 1, the strike was withdrawn on 2 February, 2001 on the following conditions: a. Two stroked three wheelers that are older that nine years shall not ply on the roads of the Capital; b. The two stroked three wheelers that are less than nine years old would be allowed to ply only if they collect fitness certificate from the respondent No. 2 by 18 February, 2002. All the three wheelers that may get fitness certificate from the respondent No. 2 would be converted into CNG into next six months. Photocopies of the newspaper clippings reporting on the strike and the decisions are annexed hereto and marked as Annexure “Z-2” series.

12. That in contrast to the above decisions as appeared in the news papers regarding conversion of two stroke three wheelers into CNG within six months (as of Annexure “Z-2”), it has been stated in the supplementary affidavit filed by the respondent No. 5 (paragraph 6 (3)) that the Government is planning to phase out two stroke three wheelers by 2007.

13. That it would thus be evident from the above statements that the various decisions of the respondents regarding conversion of petrol/diesel driven government vehicles into CNG, setting up of new CNG stations and phasing out of two stroked three wheelers within July, 2003 aiming at checking hazardous vehicular emission are still far from materialization due to lack of commitment of the regulatory authorities who are the respondents to the above Writ Petition. Such failure of the respondents is adversely affecting the safety, comfort, health, environment and lives of the millions of people residing in this City, and as such, appropriate directions from this Hon`ble Court is sought for to require the respondents to perform their statutory obligation and protect the legitimate and constitutional rights of the City dwellers from the curse of vehicular pollution.

14. That considering the gravity of the matter, an intervention from this Hon`ble Court is urgently needed to require the Respondents to perform their statutory public duties and take effective measures for controlling environmental pollution created by motor vehicles and ensure the adoption of the most appropriate mitigative measures, devices and methods as suggested by them on various occasions noted in Annexures “O”, “Q”, “R” and “Z”.

15. That to ensure that the decisions taken by the respondents in mitigating vehicular pollution as per the said Annexures “O”, “Q”, ”R” and ”Z” are properly implemented and for the ends of justice and effective disposal of the above Writ Petition, it has now become necessary that directions be issued upon the concerned respondents in the followings terms requiring them to:

(i) ensure that the decision to convert all government owned petrol/diesel driven vehicles into CNG operated vehicles be implemented within such period as may be fixed by this Hon`ble Court; (ii) ensure that new and adequate number of CNG stations necessary to facilitate and promote the conversion of petrol/diesel driven vehicles into CNG are set up in the Capital City within such time frame as may be fixed by this Hon`ble Court; (iii) ensure that the hazardous two stroked three wheeler vehicles are phased out/removed from the roads of the Capital City within 2003 as committed by the respondents.

16. That this application is filed bona fide in public interest and the reliefs sought for herein, if granted, shall be effective and efficacious.

WHEREFORE, it is most humbly prayed that your Lordships would graciously be pleased to issue direction upon the Respondents requiring them to:
(i) ensure that the decision to convert all government owned petrol/diesel driven vehicles into CNG operated vehicles be implemented within such period as may be fixed by this Hon`ble Court; (ii) ensure that new and adequate number of CNG stations required to facilitate and promote the conversion of petrol/diesel driven vehicles into CNG are set up in the Capital City within such time frame as may be fixed by this Hon`ble Court; (iii) prepare and submit before your Lordships within four weeks a report in the form of an action plan setting out definite time frame and stating the measures to be undertaken to phase out/remove the two strokes three wheelers from the roads of the Capital City (by the year 2003); (iv) submit a report on compliance of the Order of this Hon’ble Court within the time frame as may be fixed by this Hon’ble Court; (v) any other or further relief or reliefs to which the Petitioner is entitled in law and equity be also granted; And for this act of kindness your Petitioner as in duty bound shall ever pray.

AFFIDAVIT I, Syeda Rizwana Hasan, wife of Mr. Abu Baker Siddique of House # 9, Road # 8, Dhanmondi, District-Dhaka, aged about 32 years, by faith Muslim, by occupation, Lawyer, by Nationality Bangladeshi, do hereby solemnly affirm and say as follows:

1. That I am the Director (Programs) and Member, Executive Committee, BELA. I have been duly authorized by the Executive Committee of BELA to represent BELA and swear this affidavit on its behalf and as such I am fully conversant with the facts and circumstances of the case and competent swear this affidavit.

2. That the statements made herein above are true to the best of my knowledge and belief. Prepared in my office.

(M. Iqbal Kabir) (S. Rizwana Hasan)
Advocate. D E P O N E N T The deponent is known to me and identified by me.

Solemnly affirmed before me (M. Iqbal Kabir)
by the said deponent on this Advocate the ….. day of February,
2002 at a.m./p.m.

COMMISSIONER OF AFFIDAVITS SUPREME COURT OF BANGLADESH HIGH COURT DIVISION, DHAKA.