Federation Of Delhi Bus Operators ... vs Lt. Governor Of Delhi & Ors.
2011 Latest Caselaw 1959 Del

14
*            THE HIGH COURT OF DELHI AT NEW DELHI

%                          Judgment delivered on : 05.04.2011


                      WP(C) No.7400/2010 & CM No.14662/2010


FEDERATION OF DELHI BUS OPERATORS & ORS.           .. PETITIONERS


                            -VERSUS-


LT. GOVERNOR OF DELHI & ORS..                     .. RESPONDENTS

Advocates who appeared in this case:

For the Petitioner : Mrs. Rani Chhabra, Advocate For the Respondents: Mr. Najmi Waziri, Standing Counsel, GNCTD with Ms. Neha Kapoor, Advocate

CORAM :-

HON‟BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MR JUSTICE RAJIV SHAKDHER

1. Whether the Reporters of local papers may Yes be allowed to see the judgment ?

2.    To be referred to Reporters or not ?             Yes
3.    Whether the judgment should be reported          Yes
       in the Digest ?

SANJAY KISHAN KAUL, J (ORAL)

The petitioner‟s association is of bus operators who are

operating the blue line buses in Delhi. The petitioners are

aggrieved by the impugned notification dated 27.10.2010 issued in

exercise of powers conferred under section 115 read with clause 41

of section 2 of the Motor Vehicles Act, 1988 (in short, the „Act‟)

prohibiting the entry, plying and idle parking of blueline buses/

private stage carriage buses plying on roads falling in NDMC area

as per the details set out in the annexure. The said notification,

however, permits all such operators to be eligible to apply for

alternate routes.

We may at the threshold state that the mode and manner of

plying of blueline buses has been receiving the attention of this

court in WP(Crl.) No.878/2007 entitled Court on its own motion Vs.

State of Delhi, on account of the extraordinary large number of

accidents and loss of lives caused by the reckless and negligent

driving of blueline buses. Final directions have been issued in that

writ petition on 03.03.2011. It is not disputed before us that in

terms of those directions, the blueline buses having valid permits

would continue to operate till their permits expire in the year 2012.

Learned counsel for the petitioners fairly states that the

grievance, if any, against that order could be redressed only by

filing a Special Leave Petition. She, however, submits that her

challenge to a notification in question still survives as assuming

that the blue line buses whose permits are to be phased out by

2012, in the interregnum, cannot be prohibited from plying on

routes in the NDMC area, notwithstanding the fact that they have

been offered alternate routes. In a nutshell, the plea is that they

should be allowed to ply buses on routes which were originally

available to them. In other words by this notification NDMC areas

cannot be excluded from their routes.

In order to appreciate the aforesaid submission, it is

necessary to reproduce section 115 of the said Act, which reads as

under :-

"115. Power to restrict the use of vehicles. - The State Government or any authority authorised in this behalf by the State Government, if satisfied that it is necessary in the interest of public safety or convenience, or because of the nature of any road or bridge, may, by notification in the Official Gazette, prohibit or restrict, subject to such exceptions and conditions as may be specified in the notification, the driving of motor vehicles or of any specified class or description of motor vehicles or the use of trailers either generally in a specified area or on a specified road and when any such prohibition or restriction is imposed, shall cause appropriate traffic signs to be placed or erected under section 116 at suitable places :

Provided that where any prohibition or restriction under this section is to remain in force for not more than one month, notification thereof in the Official Gazette shall not be necessary but such local publicity is the circumstances may permit shall be given of such prohibition or restriction." (emphasis is ours)

Similarly, the impugned notification dated 27.10.2010 being

relevant is extracted hereinbelow:

"Whereas the spate of fatal accidents involving private stage carriage (blueline/whiteline) buses had invited severe public concern and criticism on the way these buses are operating notwithstanding stringent permit conditions for ensuring road safety. Whereas the Division Bench of Hon‟ble High Court of Delhi took suo-moto notice of the repeated fatal accidents being caused by the stage carriage (blueline/whiteline) buses and initiated criminal writ-

petition bearing no.878/2007 in the matter of Couirt on its own Motion. In its order dated July 10,2007, the Hon‟ble High Court of Delhi inter alia show caused to the Government of NCT of Delhi as to why this Court should not immediately order the replacement of blueline/whiteline buses by safer mode of public transport.

Whereas the Government of National Capital Territory of Delhi had assured the Hon‟ble High Court of Delhi that a decision had been taken to phase out the private stage carriage (blueline/whiteline) buses.

          Whereas        the        Department           vide        order
          No.F.AS/STA/2007/6744-10668            Dated       07.09.2007

informed each private stage carriage (blueline/whiteline) bus permit holder about the phase out of vehicles. Whereas these buses have been operating on temporary permits after expiry of the 5 year permits with the approval of Hon‟ble High Court of Delhi. Whereas in order to ensure public safety during Commonwealth Games, 2010 and also to regulate traffic and congestion on Delhi roads, the Government had restricted the operation of Private Stage Carriage (Blueline/whiteline) buses on routes falling in NDMC area by stopping / curtailing operation on such routes as per annexure I & II w.e.f. 26th September, 2010 and the restriction was further extended upto 25.10.2010. Details of the routes referred above were published on the website transport.delhigovt.nic.in and also pasted on the Notice Board of STA Branch.

Whereas the above decision of the Government was appreciated by all concerned.

Whereas no sooner was the restriction removed, repeat of rash driving and fatal accident again came to the notice of the Government.

Whereas the Hon‟ble High Court of Delhi, while referring to the fatal accidents being caused by the Blueline/Whiteline buses, was constrained to state in WP(Crl.) No.878/2007 vide order dated 10th July, 2007 as under :

"This has assumed such alarming proportions that not only it is a threat to the life of the common man who uses the public transport but it also affects the control and regulation of traffic in the NCT of DELHI and other road users and commuters which is violative of Article 21 of the Constitution of India. This has been so held by the Hon‟ble Supreme Court in M.C. Mehta Vs. Union of India and Ors. (1997) 8 SCC 770....".

Now, therefore, in order to ensure public safety and convenience of the common man and in exercise of the powers conferred by section 115 read with clause (41) of section 2 of the Motor Vehicles Act, 1988 (59 of 1988), the Government of National Capital Territory of Delhi, on being satisfied that it is necessary to regulate the movement of Blueline/Whiteline private stage carriage buses and in the interest of public safety and convenience of the all road users in Delhi / New Delhi areas, hereby, prohibits the entry, plying and idle parking of Blueline/Whiteline private stage carriage buses on roads / areas falling in the NDMC area as per details in Anneuxre I & II. All such operators would however be eligible to apply for alternate routs.

By order and in the name of The Lieutenant Governor of the National Capital Territory of Delhi Sd/-

(R.K. Verma) Secretary-cum-Commissioner (Tpt.)"

A perusal of the aforesaid notification shows that after the

Division Bench took sue motu cognizance of the problem arising

from plying of blueline buses, the matter received the attention of

the Govt. of NCT of Delhi. To ensure public safety, regulation of

traffic and consequent de-congestion of roads in Delhi - the

Government of NCT, first experimented with idea of regulating

access of petitioners to NDMC routes during the Commonwealth

Games, 2010 (in short „Games‟). Thus the operation of these buses

was restricted on certain routes falling in the NDMC area for a

specified period of time. In the aftermath of Games the restriction

was lifted. But no sooner was this done there was a repetitive

cycle of rash driving and accidents which were to the notice of the

Govt of NCT.

It is in these circumstances, the Govt of NCT was satisfied

that it was necessary to regulate the movement of the blue/ white

line buses in the interest of public safety and convenience of all

road users in Delhi and New Delhi areas by prohibiting the entry,

plying and idle parking of the private stage carriage buses on roads

falling in NDMC area.

Learned counsel for the petitioners submits that the aforesaid

notification is invalid as section 115 does not envisage prohibiting

any particular bus from plying in any area. It is submitted that

what is envisaged is that there may be such a ban in respect of a

specified class or description of motor vehicles. In other words,

vehicles as a class be it buses or trucks may be prohibited from

plying certain routes either during specified time or even in respect

of certain areas (such as NDMC area) but it cannot be that from

amongst a class of vehicles, say busses in this case, in certain

areas during specified time or for that matter, all buses may be

prohibited the blue/ white line buses are singled out for prohibition.

The submission thus veers around to the issue, in context of the

impugned notification, to blue/ white line bus not falling within the

scope of expression "any specified class" or "description of motor

vehicles" mentioned in Section 115 of the M.V. Act.

Learned counsel for the respondents, on the other hand,

submits that blue/ white line buses are a class by themselves. This

submission is based on a dual plea. The first is that the High Court

taking suo-motu cognizance in WP(Crl.) 878/2007 and framing the

questions qua blue/ white line buses that they thus recognized as a

class by itself. Secondly, pursuant thereto, the empirical data has

come to the attention of the Govt of NCT requiring it issue the

impugned notification.

It is submitted that a perusal of the judgment delivered on

03.03.2011 in WP(Crl.) 878/2007 would give the historical

background in which the court issued the directions for phasing out

blue line/ white line buses in Delhi. An alternate model introduced

by the respondent, i.e., „cluster scheme‟ has received a seal of

approval of this court and hence would have to be taken to be in

public interest at this juncture. Furthermore a perusal of the said

judgment would show that the intent to phase out blue line/ white

line buses has been within the knowledge of the operators; a

decision which has once again received the imprimatur of the

court.

Learned counsel for respondents also drew our attention to

the judgment of the Supreme Court in M C Mehta Vs. Union of India

& Ors. (1997) 8 SCC 770, wherein in paragraph no.3, the provisions

of the said Act read with the provisions of other existing laws like

Police Act and Code of Criminal Procedure have been held wide

enough to confer ample power on the authorities concerned to take

necessary steps to control and regulate road traffic and to suspend

/cancel the registration or permit of a motor vehicle if it poses a

threat or hazard to public safety.

On the other hand, learned counsel for the petitioners has

referred to the judgment in Uttar Pradesh State Road Transport

Corporation Vs. Assistant Commissioner of Police (2009) 3 SCC 634

to contend that the right to ply a vehicle in terms of the provisions

of the said Act or Rules framed thereunder is a statutory right and

that no direction can be issued in contravention of the conditions of

the permit, which would entail in effect suspension/ cancellation or

curtailment of the permit.

On examination of the issues, we find that what is sought to

be restricted is the plying of vehicles, in a particular area, by

according an alternate routes to the blueline/ white line bus

operators. The prohibition is in respect of only blueline /whiteline

buses only. Thus the controversy really centres around the issue

as to whether the blueline/whiteline buses can be said to be a

„class‟ by themselves. If it is so only then the impugned notification

would fall within the ambit of the provisions of Section 115 of the

said Act.

We find that there is hardly any doubt about such a class

being in existence. The fact that this High Court took cognizance

qua only this class of vehicles is apparent from the orders passed in

WP(Crl.) 878/2007. In fact, suo-motu cognizance was taken in the

matter arising from repeated reports about death caused by such

vehicles. A decision was thus taken to phase out such vehicles,

which has received the imprimatur of this court.

The expression used in section 115 of the said Act is "any

specified class or description of a motor vehicle", thus both "class"

and "description" of a motor vehicle are capable of being

prohibited or restricted. All buses may be motor vehicles of one

description or the other but blue line/white line buses are certainly

a "class" by themselves. We thus are not persuaded to hold that

the impugned notification is ultra vires the provisions of section

115 of the said Act.

A reading of the impugned notification also shows the

thought process, which was behind the issuance of the notification.

The notification itself sketches out the brief history. The interim

measure during Commonwealth Games, 2010 proved to be very

fruitful and the removal of that measure once again caused

problems compelling the State Government to permanently ban

plying of blue line buses in the NDMC area.

We are thus unable to accept the plea that the impugned

notification is issued in the absence of any material or is ultra vires

the power conferred upon the State under section 115 of the said

Act.

Learned counsel for the respondents has explained that the

rationale for banning the plying of these blue line/ white line buses

in the NDMC area; which is that most routes pass through the

NDMC area increasing the density of traffic to unmanageable

levels.

The petitioners, in our view, do not have an inalienable right

to ply their buses on a particular route or in a particular area. The

petitioners are being issued alternate permits to ply on other

routes. A policy decision has been taken by the State Government

based on an empirical data and such a policy decision cannot be

said to be arbitrary or illegal. The court does not have the

necessary wherewithal into the niceties of such like matters which

impinge of issues of policy.

We see no reasons to exercise powers under Article 226 of

the Constitution of India. The writ petition is accordingly dismissed

with costs of Rs.10,000/- to be paid to the respondents within 15

days.

SANJAY KISHAN KAUL, J.

APRIL 05, 2011                               RAJIV SHAKDHER, J.
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