Mira Bhayandar Republican ... vs State Of Maharashtra And Ors
2017 Latest Caselaw 108 Bom

         Megha/pathak                                     AUTO RIKSHA.sxw

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CIVIL APPELLATE JURISDICTION

                      WRIT PETITION NO.12843 OF 2016

Shivpujan Kumar S/o. 
Gopikisan Singh & Anr.                      ...Petitioners 

                   Versus 

The State of Maharashtra &          ...Respondents
Ors.
                           WITH
            WRIT PETITION (st)NO.31669 OF 2015

Bhiwandi City Rickshaw-Taxi 
Chalak Malak Sanghatana                       ...Petitioner
                   Versus 
The State of Maharashtra &          ...Respondents
Ors.
                          WITH
             WRIT PETITION NO.12766 OF 2016

Mira Bhayandar Republican 
Rickshaw Chalak Malak Union 
(Registered)                                  ...Petitioner
                   Versus 
The State of Maharashtra &                   ...Respondents
Ors.

                      WRIT PETITION NO.11489 OF 2016

Bhiwandi City Rickshaw-Taxi 
Chalak Malak Sanghatana
Through President Shri 
Giris"(b)After going through                  ...Petitioner
the records and proceeding 
Prakash Jhaveri
                   Versus 
The State of Maharashtra &                   ...Respondents
Ors.



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            Megha/pathak                                      AUTO RIKSHA.sxw

                        WRIT PETITION NO.11948 OF 2016

Bhiwandi City Rickshaw-Taxi 
chalak Malak Sanghatana.                         ...Petitioner
                     Versus 
The State of Maharashtra &          ...Respondents
Ors.
                           .....
Mr. S.K. Shinde i/b Mr. Yuvraj Patil for the 
Petitioners in WPST/31669/2016
Mr. S.K. Shinde i/b Mr. Suresh M. Sabrad for the 
Petitioner in WP/11489/2016 and WP/11948/2016.
Mr. Suhas Deokar for the Petitioner in 
WP/12766/2016.
Mr. Vasant Kumar Bang for the Petitioner in 
WP/12843/2016.
Mr. Manish Pabale, AGP for the Respondents-State 
of Maharashtra in all the Petitions.

         CORAM : A.S. OKA & SMT. ANUJA PRABHUDESSAI, JJ. 

DATED: 28th FEBRUARY & 1st MARCH 2017.

ORAL JUDGMENT: (PER A.S.OKA,J.) OVERVIEW

1 By the order dated 3rd February, 2017 passed in

the Writ Petition (stamp) No.31669 of 2016, this Court

directed that this group of Petitions shall be disposed

of finally at the stage of admission. The learned AGP

appearing for the State has relied upon the affidavit-

in-reply of Purushottam Nikam, Deputy Transport

Commissioner (Enf.1) filed in Writ Petition No.12766 of

2016 by stating that it is a common affidavit filed

dealing with all the Petitions.

            Megha/pathak                                         AUTO RIKSHA.sxw



2                On   23rd         October,   2015   (Home)   Transport 

Department of the State Government addressed a letter

to the Commissioner of Transport of the State

Government. The said communication records that there

are several Contract Carriage Permits under section 74

of the Motor Vehicles Act,1988 (for short "the said

Act") issued in respect of auto rikshaws, which have

lapsed for various reasons. A direction was issued to

the Commissioner of Transport to grant the lapsed

Contract Carriage Permits in respect of auto rikshaws

by adopting a lottery system. Condition No.3 in the

said communication was that an Applicant who applies

for Permit should have a knowledge of the local

language and should be aware of the topography of the

area for which Permit is sought. Accordingly, on 30 th

December 2015, the Transport Commissioner published a

Public Notice inviting online applications for grant of

such Permits under Section 74 of the said Act. The

conditions of eligibility were incorporated in the said

Public Notice. The English translation of the condition

no.7 incorporated in the Public Notice reads thus:

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"The Applicant should have knowledge of

Marathi language and geographical knowledge of

the local area as per Rule 24 of the

Maharashtra Motor Vehicles Rules,1989"

(emphasis added)

A communication was issued on 20th February, 2016 by the

Transport Commissioner to all the Regional Transport

Offices laying down the manner in which knowledge of

Marathi language of the candidates should be tested.

QUESTIONS INVOLVED

3 The first issue involved in this group of

Petitions is whether the State Government has a

statutory power to impose the aforesaid eligibility

condition no. 7. The second issue which arises for

consideration in Writ Petition No.12766 of 2016 is

based on observations made in paragraph 2 of the order

dated 17th November, 2016. The order records that

number of complaints are very often received from the

public regarding behaviour of auto rikshaw drivers.

The Division Bench of this Court, therefore, observed

that the scope of the said Petition will be expanded

and the Court will go into the question of mechanism

provided for dealing with the redress of the grievances

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of the commuters. The Petitioners in the said Petition

have not objected to this Court going into the said

question.

PRAYERS IN PETITIONS

4 In the Writ Petition No.31669 of 2016, the

challenge is to the aforesaid communication dated 20th

February, 2016 issued by the Transport Commissioner

laying down the manner in which the knowledge of Marathi

language of the Applicants should be tested. In the

Writ Petition No.12766 of 2016, the challenge is to the

same communication. In the Writ Petition No.12843 of

2016, an exception is taken to the same communication

dated 20th February, 2016 as well as the communication

dated 24th February, 2016 which is annexed at Exhibit

'F' to the Petition. It is again a communication sent

by the Transport Commissioner to various Regional

Transport Officers laying down the manner in which

knowledge of the Marathi language of the Applicants will

be tested. In the Writ Petition No.11489 of 2016, the

challenge is confined to the communication dated 20 th

February, 2016. Lastly, in Writ Petition No.11948 of

2016 the challenge is again to the same communication

dated 20th February, 2016.

            Megha/pathak                                     AUTO RIKSHA.sxw

                      SUBMISSIONS

5                The   learned   counsel   Mr.   Shinde   representing 

some of the Petitioners has invited our attention to

the provision of the said Act and in particular various

definitions and sections 73 and 74. He has also

invited our attention to the Maharashtra Motor Vehicles

Rules, 1989 (for short " The Maharashtra Rules").

Inviting our attention to the sections 73 and 74 of the

said Act, he has submitted that neither section 73 nor

section 74 lay down any qualifications or conditions of

eligibility for making an application for grant of a

Contract Carriage Permit. He pointed out sub section 2

of section 74 of the said Act which confers power on

the Regional Transport Authority to impose any one or

more conditions which are provided in clauses (i) to

(xiii) thereof. He has submitted that sub-section 2 of

section 74 does not confer any power on the Regional

Transport Authority of imposing a condition in the

Contract Carriage Permit of the Permit holder having

adequate knowledge of local language and adequate

knowledge of topography of the area in respect of which

Permit is sought. He submitted that at highest, the

State Government could have exercised the Rule making

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power. Clause (xiii) of sub section 2 of section 74

confers power on the Regional Transport Authority to

impose additional conditions as may be prescribed by

Rules. He urged that no such Rule making power has

been exercised by the State Government. He has relied

upon a decision of the Apex Court in the case of

Pancham Chand & Ors. vs. State of Himachal Pradesh and

Others1 He has submitted that as held by the Apex

Court, all Government orders must comply with

requirements of a statute. He has submitted that in

the facts of the case, the Apex Court held that

Hon'ble Chief Minister cannot act in derogation of the

statutory provisions. He has submitted that at highest

the State Government is entitled to lay down a policy

which admittedly has not been done in this case. He

urged that the action of adding the impugned condition

of eligibility is completely illegal.

6 The learned AGP relied upon Rule 24 of the

Maharashtra Rules. Inviting our attention to the

affidavit-in-reply of Mr. Purushottam Nikam, he has

submitted that Rule 24 lays down the procedure for

issuing a badge which is required to be worn by a 1 (2008) 7 SCC 117

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person driving a motor cab. He urged that the knowledge

of the Marathi language is a condition precedent for

holding the badge. He has submitted that there is

nothing wrong with the condition imposed by the State

Government in as much as a driver of a motor cab should

be able to communicate with the citizens in the Marathi

language and read and understand the road sign boards

in Marathi language. It is pointed out in the

affidavit that in the absence of working knowledge of

Marathi, a driver may not be able to understand the

instructions given by the commuters thereby resulting

in more inconvenience to commuters. If a driver lacks

basic knowledge of Marathi language, the commuters

would be put to inconvenience. He has invited our

attention to the prima facie view expressed by the

Division Bench of this Court in the order dated 17th

November, 2016 in Writ Petition No.12766 of 2016

wherein it is observed that prima facie, the condition

is not unreasonable. He has submitted that no

interference is called for with the decision of the

State Government of imposing the aforesaid condition.

PRIMA FACIE VIEW EXPRESSED IN THE EARLIER ORDER

7 Before we proceed to deal with the provisions

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of the said Act as well as the Maharashtra Rules, we

must note here that in paragraph No.2 of the order

dated 17th November, 2016 in the Writ Petition No.12766

of 2016 the Division Bench of this Court has observed

thus :-

"Prima facie, in our view, the said condition is

not unreasonable because a driver of public

vehicle is expected to know the regional

language, so that he can understand the

direction given by the commuters. Number of

complaints have been received from public

regarding behaviour of rickshaw drivers. We

therefore propose to expand the scope of this

Writ Petition and would like the Transport

Commissioner to inform us as to what steps they

have taken for redressal of grievances of the

commuters."

8 What is overved by the Division Bench of this

Court in the first part of paragraph No.2 is only a

prima facie view expressed by the Bench at the time of

admission hearing of the Petition. It is not a

concluded finding which binds this Court while hearing

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the Petitions finally. Nevertheless the second part

of the direction issued under clause 2 is a direction

dealing with the scope of the Petition which will have

to be implemented by issuing various directions to the

State Government.

CONSIDERATION OF SUBMISSIONS

9 At this stage, it will be necessary to consider

the relevant statutory provisions. A Contract Carriage

is defined in sub-section 7 of section 2 of the said

Act. It means a motor vehicle which carries passengers

for hire or reward and is engaged under a contract,

express or implied. As provided in sub-section 7 OF

SECTION 2, a contract carriage includes a motor cab.

Motor cab is defined in sub section 25 of section 2 of

the said Act which reads thus :-

"25. "motorcab" means any motor vehicle

constructed or adapted to carry not more than

six passengers excluding the driver for hire or

reward;"

Motor Vehicle is defined under sub section 28 of

section 2, which reads thus:-

"28. motor vehicle" or "vehicle" means any mechanically propelled vehicle adapted for

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use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding 4[twenty-five cubic centimetres]; 1[twenty-five cubic centimetres];"

10 The question whether an auto rikshaw comes

within the meaning of motor cab defined under sub

section 25 of section 2 of the said Act is no more res

integra. A Division Bench of this Court in the case of

Sunmitra Auto Rickshaw Sahakari Sangh vs Director Of

Transport And Others2 considered the definition of motor

cab in sub section 15 of section 2 of the Motor

Vehicles Act, 1939, which was repealed under the said

Act. Paragraph Nos.2 and 3 of the said decision show

that the definition of motor cab under the repealed Act

was similar to the definition of the motor cab under

the said Act. The Division Bench clearly held that an

auto rickshaw falls within the definition of motor cab.

2 AIR 1967 Bom 402





         Megha/pathak                                        AUTO RIKSHA.sxw



11            Now   coming   to   the   provisions   OF   the   said   Act 

dealing with Contract Carriage Permits, sections 73 and

74 are material, which read thus :

"73. Application for contract carriage Permit.--An application for a Permit in respect of a contract carriage (in this Chapter referred to as a contract carriage Permit) shall contain the following particulars, namely:--

(a) the type and seating capacity of the vehicle;

(b) the area for which the Permit is required;

(c) any other particulars which may be prescribed.

74. Grant of contract carriage Permit.--

(1) Subject to the provisions of sub- section (3), a Regional Transport Authority may, on an application made to it under section 73, grant a contract carriage Permit in accordance with the application or with such modifications as it deems fit or refuse to grant such a Permit: Provided that no such Permit shall be granted in respect of any area not specified in the application. (2) The Regional Transport Authority, if it decides to grant a contract carriage Permit, may, subject to any rules that may be made under this Act, attach to the Permit any one or more of the following conditions, namely:--

(i) that the vehicles shall be used only in a specified area or on a specified route or routes;

(ii) that except in accordance with specified conditions, no contract of hiring, other than an extension or modification of a subsisting contract, may

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be entered into outside the specified area;

(iii)the maximum number of passengers and the maximum weight of luggage that may be carried on the vehicles, either generally or on specified occasions or at specified times and seasons;

(iv)the conditions subject to which goods may be carried in any contract carriage in addition to, or to the exclusion of, passengers;

(v)that, in the case of motorcabs, specified fares or rates of fares shall be charged and a copy of the fare table shall be exhibited on the vehicle;

(vi) that, in the case of vehicles other than motorcabs, specified rates of hiring not exceeding specified maximum shall be charged;

(vii) that in the case of motorcabs, a specified weight of passengers' luggage shall be carried free of charge, and that the charge, if any, for any luggage in excess thereof shall be at a specified rate;

(viii) that, in the case of motorcabs, a taximeter shall be fitted and maintained in proper working order, if prescribed;

(ix) that the Regional Transport Authority may, after giving notice of not less than one month,--

(a) vary the conditions of the Permit;

(b) attach to the Permit further conditions;

(x) that the conditions of Permit shall not be departed from save with the approval of the Regional Transport Authority;

(xi) that specified standards of comfort and cleanliness shall be maintained in the vehicles;

(xii) that, except in the circumstances of exceptional nature, the plying of the vehicle or carrying of the passengers

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shall not be refused;

(xiii) any other conditions which may be prescribed.

(3) (a) The State Government shall, if so directed by the Central Government, having regard to the number of vehicles, road conditions and other relevant matters, by notification in the Official Gazette, direct a State Transport Authority and a Regional Transport Authority to limit the number of contract carriages generally or of any specified type, as may be fixed and specified in the notification, operating on city routes in towns with a population of not less than five lakhs.

(b)Where the number of contract carriages are fixed under clause (a), the Regional Transport Authority shall, in considering an application for the grant of Permit in respect of any such contract carriage, have regard to the following matters, namely:--

(i) financial stability of the applicant;

(ii) satisfactory performance as a contract carriage operator including payment of tax if the applicant is or has been an operator of contract carriages; and

(iii) such other matters as may be prescribed by the State Government: Provided that, other conditions being equal, preference shall be given to applications for Permits from--

(i) the India Tourism Development Corporation;

(ii) State Tourism Development Corporations;

(iii) State Tourism Departments;

(iv) State Transport Undertakings;

(v) co-operative societies registered or deemed to have been registered under any enactment for the time being in force;

(vi) ex-servicemen."

(emphasis added)

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12 Sub Section 1 of Section 66 of Chapter V of the

said Act makes such Permit mandatory and makes it a

condition precedent for the use by the owner of a

motor vehicle as a transport vehicle in any public

place whether or not such vehicle is actually carrying

passengers or goods. Section 73 which is quoted above

deals with applications for Permit in respect of

Contract Carriage. Neither section 73 nor section 74

lay down qualifications of a person who can apply for

grant of Contract Carriage Permit. Sub-section 1 of

section 74 confers powers on the Regional Transport

Authority to issue Permits to anyone. Sub-section (2)

of section 74 empowers the Regional Transport

Authority to impose any of the conditions which are

specified in clauses (i) to (xiii). None of the said

clauses provide for imposing a condition on the

Applicant of having the knowledge of the local language

or the knowledge of local topography. Clause (xiii) of

sub section 2 of section 74 provides that the concerned

Regional Transport Authority may impose any other

condition which may be prescribed. The term

"prescribed" is defined under sub-section 32 of section

2. The term prescribed means prescribed by Rules made

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under the said Act. It is not disputed before us that

the State Government has not exercised the Rule making

power under clause (xiii) of sub-section 2 of section

74 by providing for imposing a condition of the

Applicant having a knowledge of Marathi language and

the knowledge of topography of the local area while

issuing the permit. We may note here that the Regional

Transport Authority, under sub section 2 of section 74,

can impose conditions as provided in any of the sub-

clauses while issuing permit. Under section 74, there

is no power to impose a condition of eligibility to

apply for grant of permit.

13 In the earlier part of the Judgment, we have made a

reference to the affidavit of Mr.P.D.Nikam to which a

copy of the advertisement dated 30th December 2015

inviting applications for grant of auto rickshaw permits

has been annexed. In the affidavit, the specific stand

of the State Government is that the condition No.7 of

eligibility quoted above has been incorporated by

taking recourse to Rule 24 of the Maharashtra Rules.

Rule 24 reads thus:

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"24. Badges of drivers of public service

vehicles- 1(1) A metal badge shall be issued to

every person who has been granted an

authorisation to drive a public service vehicle

except motor cab, subject to the condition that

he satisfies the authority about his

topographical knowledge of the area of operation

and working knowledge of Marathi and any one of

the languages commonly spoken there. The badge

shall be in the form illustrated in the Second

Schedule of these rules. The metal badge shall

be circular in shape and shall contain the name

of the headquarter of the authority which has

granted the authorization, the category of the

motor vehicle and an identification number,

inscribed thereon.

(2) The driver of a public service vehicle

shall display on the left side of the chest the

requisite metal badge issued under sub-rule (l).

No driver shall hold more than one badge of the

same type ;

Provided that, the driver of a luxury

cab and a tourist cab shall display badges

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bearing the letters "LCD" and "TCD".

Respectively."

(emphasis added)

14 As pointed out earlier, an auto rickshaw is

included in the definition of "motor cab" defined under

sub-section 25 of section 2 of the said Act. "Motor

cabs" have been specifically excluded from the

applicability of Rule 24. Hence, Rule 24 will not apply

to auto rikshaws. As Rule 24 has no application

whatsoever to auto rikshaws, the eligibility condition

no.7 based on Rule 24 could not have been incorporated

as a qualification for a person applying for the grant

of a Contract Carriage Permits under section 74 of the

said Act for auto rickshaws. As pointed out earlier,

even such a condition could not have been imposed even

while granting permit as the Rule making power has not

been exercised under clause (xiii) of sub-section 2 of

Section 74.

15 We may also note here that in the affidavit of Shri

Nikam it is sought to be contended that the said

condition has been imposed for the benefit of the

members of the public who use auto rickshaws. The

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question is whether such a condition could have been

imposed in accordance with law. The Contract Carriage

Permits must be issued in accordance with the said Act

and the Rules framed thereunder. According to us, this

issue is squarely covered by the decision of the Apex

Court in the case of Pancham Chand & Others.

Paragraph 18 of the said decision reads thus:

"18 The Act is a self-contained code. All the authorities mentioned therein are statutory authorities. They are bound by the provisions of the Act. They must act within the four corners thereof. The State, although, has a general control but such control must be exercised strictly in terms of Article 162 of the Constitution of India. Having regard to the nature and the manner of the control specified therein, it may law down a policy. Statutory authorities are bound to act in terms thereof, but per se the same does not authorise any Minister including the Chief Minister to act in derogation of the statutory provisions. The Constitution of India does not envisage functioning of the Government through the Chief Minister alone. It speaks of a Council of Ministers. The duties or functions of the Council of Ministers are ordinarily governed by the provisions contained in the Rules of

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Business framed under Article 166 of the Constitution of India. All governmental orders must comply with the requirements of a statute as also the constitutional provisions. Our Constitution envisages a rule of law and not rule of men. It recognises that however high one may be, he is under law and the Constitution. All the constitutional functionaries must, therefore, function within the constitutional limits."

(emphasis added)

Even paragraph 19 of the said decision is material

which reads thus:

"19 Apart from the fact that nothing has been placed on record to show that the Chief Minister in his capacity even as a member of the Cabinet was authorised to deal with the matter of transport in his official capacity, he had even otherwise absolutely no business to interfere with the functioning of the Regional Transport Authority. The Regional Transport Authority being a statutory body is bound to act strictly in terms of the provisions thereof. It cannot act in derogation of the powers conferred upon it. While acting as a statutory authority it must act having regard to the procedures laid down in the Act. It cannot bypass or ignore the same."

(emphasis added) CONCLUSION

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16 Unless there is a specific provision under the said

Act or under the Rules framed in exercise of power

under the said Act empowering the State Government to

prescribe such qualifications for the applicants who

want to apply for Contract Carriage Permits in respect

of auto rickshaws, the State Government could not

have lawfully imposed the impugned condition. The

State Government is under a mandate to act within four

corners of the said Act and the Rules framed

thereunder. Nothing prevented the State Government

from exercising the Rule making power, if it is

otherwise permissible in law, for empowering the

Transport Department to impose such condition as a

condition precedent for grant of permit. Only by

giving an excuse of public interest, the State

Government cannot circumvent the provisions of the said

Act and the Rules framed thereunder. The State

Government cannot apply Rule 24 as it is not applicable

to motor cabs.

17 In the circumstances, the challenge by the

petitioners to the impugned condition will have to

upheld only on the ground that the State Government had

no power either under the said Act or the Maharashtra

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Rules to impose such a condition.

DIRECTIONS PROPOSED TO BE ISSUED

18 In Writ Petition No. 12766 of 2016, a Division

Bench of this Court has observed that there are large

number of complaints by the commuters as regards the

conduct of the drivers of the motor cabs and in

particular auto rickshaws. Rule 21 of the Maharashtra

Rules lays down the Rules of conduct and duties of

drivers of motor cabs. Rule 21 of the Maharashtra Rules

reads thus:

"(21) Rules for conduct and duties of drivers of

motor cabs.

(1) The drivers of the first two motor cabs on

any stand shall always stay near their cabs

which shall be ready for immediate hiring by any

person.

(2) All drivers shall move their cabs up as

vacancies occur in the stand.

(3) Every cab shall be kept with front wheels

straight at a distance of not less than thirty

centimeters from the cab immediately in front of

it and where the stand is by the side of a kerb,

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parallel to and not more than thirty centimeter

from the kerb.

(4) No driver shall allow his cab to remain on

the stand if it is disabled unless the

disablement is of a temporary nature which can

be immediately remedied and is so remedied.

(5) No driver shall allow his cab when it is

not engaged to remain at any place other than a

stand appointed for the purpose nor shall be

loiter for the purpose of its being hired in any

public place.

(6) No driver shall prevent or attempt to

prevent the first cab on the stand from being

hired.

(7) No driver whose cab has been engaged for

some future time shall keep his cab on a stand

unless he is willing to accept an intermediate

engagement that may be offered.

(8) A driver of a motor cab shall in the

absence of reasonable cause to the contrary

proceed to the destination named by the hirer by

the shortest and quickest route.

  (9)        No driver of a motor cab shall make use of 







        Megha/pathak                                    AUTO RIKSHA.sxw

his cab in connection with or for the

furtherance of prostitution;

(10) No driver of a motor cab shall carry a

cleaner or other attendant unless Permitted

specifically to do so by the Regional Transport

Authority on such conditions as may be specified

by it.

(11) No driver of a motor cab shall terminate

the hiring thereof before he has been discharged

by the hirer.

(12) No driver of a motor cab shall demand or

exact any fare in excess of that to which he is

legally entitled.

(13) No driver of a motor cab shall shout in

order to attract a passenger.

(14) A driver of a motor cab shall at all times

exercise all reasonable care and diligence to

maintain his vehicle in a fit and proper

condition and shall not knowingly drive the

vehicle when it or any brake, tyre or lamp

thereof is in a defective condition likely to

endanger any passenger or other person or when

there is not sufficient fuel in the tank of the

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vehicle to enable him to reach the next fuel

filing station on the route.

(15) No driver of a motor cab shall solicit a

customer except in a civil and quiet manner; nor

shall he in any way interfere with any person

boarding or preparing to board another vehicle.

(16) A driver of a motor cab shall not smoke

while on duty.

(17) A driver of a motor cab shall behave in a

civil and orderly manner to passengers and

others.

(18) A driver of a motor cab or a Permit holder

when himself drives the motor cab, shall wear

clean khaki shirt or bush shirt and khaki

trousers. A driver of motor cab or Permit

holder when himself driving a motor cab shall

display a laminated identity card as illustrated

in the Second Schedule to these rules, on the

right side of the chest, issued by the licensing

authority on payment of rupees fifty:

Provided that when drivers of such vehicles are

or are likely to be called upon to perform

duties in an emergency or to receive the

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training, the Government may, by general of

special order, exempt such drivers from the

operation of this sub-rule for such period as

may be specified in the order.]

[(18-A) If the identity card is lost or

destroyed, a duplicate identity card shall be

issued by the licensing authority by which it

was issued on an application made in form D.I.D

of the First Schedule to these rules accompanied

by a fee of twenty-five rupees. In case the

original identity card is later found, upon the

return to the issuing authority of the

duplicate Identity card, the driver of the motor

cab or a Permit holder, as the case may be shall

been entitled to a refund of twenty-five rupees.

In case of suspension or revocation of driving

licence by an authority or by any Court or

ceases to be valid due to efflux of time, the

driver or the Permit holder, as the case may be

shall, within seven days of such suspension or

revocation, surrender the Identity Card held by

him to the authority by whom the same were

suspended.]

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(19) A driver of motor cab shall maintain the

vehicle in a clean and sanitary condition.

(20) No driver of a motor cab shall allow any

person to be carried in any motor cab in excess

of the seating capacity specified in the

certificate of registration of the vehicle.

(21) A driver of a motor cab shall not hold more

than one laminated identity card issued by the

licencing authority.

(22) If at any time the authorization of a

driver's driving licence entitling him to drive

a motor cab is suspended or revoked by an

authority or by any Court or ceased to be valid

by the efflux of time, the driver shall within

seven days surrender the badge to the authority

by which it was issued.

(23) No driver of a motor cab shall cause or

allow to enter into or to be placed or carried

in the vehicle, any person whom he knows or has

reason to believe to be suffering from any

infectious or contagious disease, or the corpse

of any person whom he knows or has reason to

believe to have been suffering from any such

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disease.

(24) Notwithstanding the provisions of sub-rule

(23), the driver may upon application in writing

by a registered medical practitioner allow a

person suffering from an infectious or

contagious disease to be carried in a motor cab,

provided that no other person save a person or

persons in attendance on the person so suffering

shall be carried in the vehicle at the same

time.

(25) Where a person suffering from an infectious

or contagious disease, or the corpse of any such

person has been carried in a motor cab, the

driver of the vehicle shall report the fact of

such carriage to the medical officer-incharge of

the nearest Municipal Zilla Parishad, Panchayat

Samiti or Government dispensary and to the owner

of the vehicle and neither the owner nor the

driver shall cause or allow any person, to use

the vehicle until the driver and the vehicle

have been disinfected in such manner as the said

medical officer may specify and a certificate to

this effect has been obtained from the said

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medical officer.

(26) No person shall drive any motor cab unless

in every two months, it is disinfected with

D.D.T or any other liquid insecticide, approved

for the purpose by the Surgeon-General with the

Government of Maharashtra.

(27) The owner of a motor cab shall maintain and

on demand by an officer of the Motor Vehicles

Department of and above the rank of Assistant

Inspector of Motor Vehicles or a Police

Officer, produce for inspection a current

register showing the dates on which the motor

cab was disinfected from time to time, and shall

also satisfy him that a mechanical spray which

shall be used for the purpose of such

disinfection is in working order.

(28) A driver of a motor cab shall, on demand by

any Police Officer in uniform or an Officer not

below the rank of an Assistant Inspector of

Motor Vehicles, produce his driving licence for

inspection.

(29) The driver of a motor cab shall at the

conclusion of every journey make reasonable

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search in the vehicle for anything left by any

passenger and shall take into his custody

anything so found and shall as soon as may be

convenient hand over the same to the Officer-in-

charge of the nearest Police Station.

(30) The driver of a motor cab, shall not,

without the approval of its owner Permit any

other person to drive the vehicle.

(31) A driver of a motor cab shall, whenever the

vehicle approaches an unguarded level crossing,

cause it to be stopped and, after ensuring that

no train is approaching in either direction,

proceed to cross it."

19 While filing an affidavit in reply, the State

Government was very much conscious of the issue

involved as regards implementation of the provisions of

Rule 21 and the grievances of the commuters.

Paragraphs 21 and 22 of the said affidavit reads thus:

"21 I say and submit that a proposal to set up

24 X 7 call centre to give necessary information

to citizens, register complaints etc is under

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consideration by the Government.

22 I say and submit that online application is

being proposed for Grievance management which

would also cover complaints against Auto/Taxi

refusals/fare/misconduct etc. There is also a

proposal for creation of a web based application

for all services which are not covered under

Vahan/Sarthi software and require citizens to

make multiple visits to the department. A mobile

app to access all these services is also

proposed to enable anytime anywhere access to

department services."

20 Thus, the affidavit makes it clear that there is no

proper grievance redress mechanism provided for the

benefit of the members of public. Setting up 24 X 7

call centres may not be sufficient at all. By way of

illustration, if a passenger who occupies a seat in an

auto rickshaw or motor cab finds that the driver of the

motor cab is not behaving in a civil and orderly manner

with him or her, there is no machinery which can

immediately protect the passenger. Clause 8 of Rule 21

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mandates that a driver of a motor cab in absence of

reasonable cause to the contrary must proceed to the

destination named by the hirer by a shortest and

quickest route. If a passenger notices that the driver

is not following said Rule and on the passenger

objecting to it behaves with him in a rude manner, the

passenger becomes helpless. In such cases, no purpose

will be served by the passenger making a complaint

after the journey is over. There are instances where

though the auto rickshaw or motor cab is not engaged

by any passenger, the driver refuse to render services

to the passenger.

21 Therefore, while setting up the grievance redress

mechanism by providing 24 X 7 call centre, the State

Government will have to also make arrangement to enable

the passengers to lodge complaints about the breach of

Rule 21 or any other misbehaviour of auto ricksha/motor

cab drivers by sending SMS or whats app message or e-

mail while the passenger is travelling by an auto

rickshaw or a motor cab. A mobile application can be

which a complaint can be lodged. Ideally a mechanism

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should be made vailable under which the local police

get immediate information about the complaint of a

passenger in distress so that the local police can

immediately intervene and help the passenger.

Considering the availability of modern devices of

communication, the State Government can evolve a

grievance redress mechanism which will ensure that the

passenger can lodge a complaint which will be

immediately attended not only by the office of the

Regional Transport Officer but also by the police by

rendering timely and immediate help to passenger.

22 The matter does not end by providing speedy and

timely help to the passenger. If any breach of Rule 21

is noticed, the same must result in taking stringent

action against the Permit holder and driver of the

motor cab. An action of cancellation of Permit as well

as cancellation of identity card of the driver of the

motor cab which is required as per clause 18 of Rule 21

must follow. We, therefore, propose to issue

directions to the State Government to set up grievance

redress mechanism in the light of what we have held

above. Today, a chart is tendered by the learned AGP

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giving figures of the complaints received from the

citizens along with certain documents. We find that

except for recovering fine or compounding charges,

hardly any action has been taken against the erring

Permit holders or drivers.

23 As the Petitioners which are the unions

representing Permit holders of motor cabs have sought

equitable relief, we propose to direct the Petitioners

in each Petitions to file affidavits for placing on

record the steps which the Petitioners propose to take

ensuring that the Permit holders/ the auto rickshaw

drivers strictly comply with the requirements of law

and in particular, the said Act and the Maharashtra

Rules framed thereunder

24 Hence, we pass the following order :

ORDER IN WRIT PETITION NOS.12843 of 2016, 11489

of 2016, 11948 of 2016 AND St.31669 of 2016

(I) We hold that the condition no.7 in clause I of the

Advertisement of 30th December 2015 (a copy of which is

annexed as Annexure-1 to the affidavit-in-reply of

Shri P.D.Nikam) of requiring the applicants to satisfy

the requirements of Rule 24 of the Maharashtra Rules is

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completely illegal as Rule 24 is not applicable to

motor cabs. The said condition No.7 is not supported by

the said Act or the Maharashtra Rules;

(II) No applicant who has applied for the Permit on the

basis of the aforesaid advertisement shall be held as

disqualified on the ground that he has not complied

with the requirements set out in condition No.7 of

clause I of the said advertisement;

(III) To that extent, the impugned circular/

communication dated 20th February 2016 will be

inoperative as the said circular has been issued in

furtherance of the aforesaid condition No.7 which is

held to be illegal;

(IV)Writ Petition Nos.12843 of 2016, 11489 of 2016,

11948 of 2016 and Writ Petition St.31669 of 2016 are

disposed of on above terms;

ORDER IN WRIT PETITION No.12766 OF 2016

In the light of the observations made in clause

2 of the order dated 17th November 2016, we issue Rule.

Learned AGP waives service for the respondents. The

prayer (b) is disposed of in terms of the above

direction issued in companion matters. By way of

interim relief, we issue the following directions:

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(i)We direct the State Government to create a grievance

redress mechanism for the benefit of the passengers

traveling by motor cabs for enabling the passengers to

lodge complaints regarding breach of the Rule 21 of

the Maharashtra Rules and any other breach or regarding

the commission of any offence by the holder of the

Permit or the driver of the motor cab;

(ii)Necessary facilities as observed in this Judgment

shall be made a part of the grievances redress

mechanism. The mechanism shall be in place within a

period of two months from today;

(iii)The record of the complaints received from the

passengers by all permissible modes provided in the

grievance redress mechanism shall be maintained by the

appropriate department of the State Government. Action

taken reports on the complaints shall be uploaded on

the website of the Transport Department or a dedicated

website to enable the complainants to know the action

taken on the basis of their complaints;

(iv) As observed in the Judgment, necessary

arrangements shall be made to ensure that the police

take immediate action on receipt of any complaint made

by the passenger travelling by a motor cab who is in

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distress. The police shall render immediate help to

such passengers on receiving complaints. The mechanism

shall provide for taking immediate stringent action

against the Permit holder and the driver. Adequate

publicity shall be given to the availability of such

grievance redress mechanism. Adequate publicity shall

be given to the availability of grievance redress

mechanism in all leading newspapers, on T.V.Channels,

Radio Channels, websites, websites of the State

Government etc:

(v)Compliance affidavit shall be filed by the State

Government with the aforesaid directions on or before

3rd May 2017;

DIRECTION IN ALL THE PETITIONS IN THE GROUP

(a) We direct the Petitioners in each petition to file

an affidavit within the same time for placing on record

the steps which they propose to take for ensuring that

their members and/or their drivers strictly comply with

the requirement of law and in particular the said Act

and the Maharashtra Rules framed thereunder;

(b) It will be open for the Petitioners to create

their own grievance redress mechanism for entertaining

complaints of the passengers travelling by the motor

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cabs;

(c) Place the petitions on 4th May 2017 under the

caption of `Directions';

(d) The Registrar (Judicial-I) shall place these

Petitions before the Hon'ble the Chief Justice on the

administrative side for seeking a direction that these

petitions shall be listed for reporting compliance

before the same Bench or before the Bench of which one

of us is a party.

(ANUJA PRABHUDESSAI, J.) (A.S. OKA, J.)