Delhi High Court
Court On Its Own Motion vs State Of Nct Of Delhi & Ors. on 3 March, 2011
Author: A.K.Sikri
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ {W. P.(CRL.) 878 OF 2007}
AND
CRL. M.A.17526/2010, R.P. NO.99/2008, CRL. M.A. 3713/2008,
CRL. M.A. 59/2009, CRL. M.A.2839/2009, CRL. M.A.
14848/2009, CRL. M.A. 4741/2010, CRL. M.A. 13972/2010,
CRL.M.A. 17353/2010, CRL. M.A. 17354/2010, CRL. M.A.
17527/2010, CRL. M.A. 17672/2010, CRL. M.A. 17673/2010,
CRL. M.A. 17674/2010, CRL. M.A. 17675/2010, CRL. M.A.
17901/2010, CRL. M.A. 17902/2010, CRL. M.A. 18430/2010,
CRL.M.A. 89/2011, CRL. M.A. 90/2011.
% Judgment reserved on: 25.02.2011
Judgment delivered on:03.03.2011
COURT ON ITS OWN MOTION
...PETITIONER
VERSUS
STATE OF NCT OF DELHI & ORS. ...RESPONDENTS
Counsel for the petitioner/applicants
& Govt. of NCT of Delhi.
Mr. V.P. Singh, Sr. Advocate with Mr. Parijat
Sinha, Mr. Vikram and Mr. Anil Kumar Mishra,
Advocates for applicants.
Mr. K.T.S.Tulsi, Sr. Advocate with Mr. N. Waziri,
Standing Counsel (Civil),Mr. Sohabi Haider, Ms.
Neha Kapoor & Ms. Zeenat Masodi,Ms.
Priyanka Agarwal, Advocates for Govt. of NCT
of Delhi with Mr. Ajay Chagti, Addl.
Commissioner.
Mr. Pawan Sharma, Standing Counsel (Crl.),
Govt. of NCT of Delhi.
Ms. Rani Chhabra, Adv. for Blue Line Bus
Federation.
Ms. Meera Bhatia, Adv.
Mr. Sumeet Pushkarna, Standing Counsel for
respondent/DTC.
Mr. Kailash Vasudev, Sr. Advocate/Amicus
Curiae with Ms. Nisha Bhabha and Ms.
Lakshita Sethi and Ms. Ekta Mehta, Advocates
W. P.(CRL.) 878/2007 & Misc. appls. Page 1 of 81
Mr. Rajiv Nayer, Sr. Advocate with Ms. Seema
Sundd, Ms. Abhiruchi Mengi, Ms.Shikha
Bhardwaj, Ms.Nidhima Sarin and Ms.Ritika
Ahuja, Advocates for R-7.
Mr. Rajiv Dutta, Sr. Advocate with Mr.
Sandeep Narain, Advocate on behalf of Ashok
Leyland
Mr. Neeraj Chaudhari, CGSC with Mr. Mohit
Auluck, Mr. Khalid Arshad, Mr. Akshay
Chandra, Advocates for UOI/R-1.
CORAM :-
HON‟BLE MR. JUSTICE A.K. SIKRI
HON‟BLE MR. JUSTICE SURESH KAIT
1. Whether Reporters of Local newspapers may be allowed
to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the Judgment should be reported in the Digest?
A.K. SIKRI, J.
Prologue:
1. On 9th July, 2007 a front page news appeared in all major
newspapers (Delhi Editions) including The Times of India, Hindustan
Times, The Statesman, The Hindu, The Indian Express and Pioneer.
All these newspapers had reported that a 14 years old boy on way to
Sunday morning game of cricket had become the 61th victim, in that
year, of the notorious Blue Line fleet and third in the past eight days
due to the rash and negligent driving of a blue line bus. This 14
years old boy was crushed to death while getting out of the bus as
the driver had speeded up the vehicle before that boy named Karan
could get off. The boy lost the balance and fell under the wheels.
With this not only a young life was lost, the dreams of his parents
were also buried with that death. This was not the first incident of
this nature where the blue line bus had snatched away the precious
life of an innocent person because of such ignoble and despicable
incidents repeatedly and regularly, within short intervals. The
newspapers, thus, underscored the terror let-loose on the roads of
Delhi by the blue line buses.
2. Exactly a decade ago, the Supreme Court had dealt with the
question of Control and Regulation of Traffic in NCR and NCT of Delhi
as uncontrolled and unregulated traffic had been causing such
ruckus. This cognizance of the fast speeding menace was taken on
the application filed by Mr. M.C. Mehta, in public interest, and in the
order passed by the Supreme Court in M.C. Mehta Vs. Union of
India, (1997) 8 SCC 770, the Supreme Court had categorically
observed that such an issue would evidently come within the ambit
of Article 21 of the Constitution. It is clear from the reading of
following lines contained in para 14 of the said order:-
"14. It is needless for us to add that the entire
scope of this matter and particularly this aspect to
which this order relates, namely, the control and
regulation of traffic in NCR and NCT, Delhi is a
matter of paramount public safety and, therefore, is
evidently within the ambit of Article 21 of the
Constitution....."
3. Guided by the aforesaid position of law and alarmed by the
havoc which the blue line busses were creating, the aforesaid front
page news item covered by the leading newspapers jolted the
conscience of this Court and a Division Bench of this Court
(comprising of Hon‟ble Mr. Justice Mukul Mudgal and Hon‟ble Mr.
Justice P.K. Bhasin) took suo moto notice of such repeated fatal
accidents being caused by the blue line buses. Taking on record the
news item appearing in all these newspapers, the issue was treated
as in Public Interest and the Division Bench in the said order noted
that the persistent threat to life by the blue line buses, light
commercial vehicles like the vehicles being used by the Call Centres,
RTVs and other heavy commercial vehicles like trucks is evident to
any road user in the capital. These vehicles have also been noticed
to be indulging in reckless driving posing a constant threat to the life
of the commuters. This has assumed such an 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. The Court felt
deeply concerned with the fact that inspite of a public outcry in face
of persistent and fatal defaults by the blue line buses, no effective
deterrent action appears to have been taken to curb the menace to
the pedestrians and commuters, posed by these blue line buses, the
above mentioned light commercial vehicles and heavy commercial
vehicles like trucks, and the terror on the roads to all the road users
continues unabated. Extensively extracting the directions which
were given by the Supreme Court in M.C. Mehta (supra), inter alia,
mandating that these vehicles were to be fitted with suitable speed-
control devices to ensure that they do not exceed the speed-limit of
40 kmph, the Division Bench expressed its anguish by taking note of
the harsh reality that hardly any blue line bus drivers were driving
below 40kmph and in fact that it was being construed as the
minimum speed limit. The Court thus issued notice to the NCT of
Delhi as well as Ministry of Transport, Government of India and
directed the NCT of Delhi to file an affidavit on the following aspects:-
"(a) Is the guideline of maximum speed of 40kms
per hour being observed by the blue line buses? If
not, what action is taken against such offenders?
(b) What action is taken against a bus involved
in a fatal accident and what further action is taken
against a driver involved in a fatal accident?
(c) How many of the blue line buses running today
are owned by the family members and relatives of
the Delhi Police personnel?
(d)What action has been taken against the buses
involved in fatal accidents since January, 2005?
(e) The Administration should show cause why this
Court should not immediately order the
replacement of these blue line vehicles by a safer
mode of public transport.
(f) What action has been taken to mobilize the
needed support and assistance of the responsible
members of the public so that the inadequacy in
the infrastructural and police personnel is not an
impediment in the enforcement of the law and the
directions given by the Hon‟ble Supreme Court in
M.C. Mehta Vs. Union of India (1997) 8 SCC
770 and M.C. Mehta Vs. Union of India (1998)
1 SCC 676?"
4. Mr. Kailash Vasudev, Sr. Advocate was also appointed as
Amicus Curiae by the same order, for assisting the Court in this
matter. On subsequent dates, various other parties including certain
NGOs, certain individual persons, the Environment Pollution
(Prevention & Control) Authority, the Federation of Delhi Bus
Operators, CRRI, IIT, DTC, NDMC and CPWD were impleaded.
Suggestions from these NGOs and public spirited persons were
solicited to tackle the problem.
History of this PIL:
5. Mr. Vasudeva gave various suggestions and on 31st July, 2007,
the suggestions given by the learned Amicus Curiae were handed
over to these persons including Delhi Government. They were asked
to file their response and give their own suggestions. At the same
time, the Govt. of NCT of Delhi and other respondents were directed
to give response to the following specific issues framed by the
Court:-
"(1) What is the time limit for the
withdrawal of the blue line buses from the
city?
(2) How many diesel private cars are added to
the city every month?
(3) What is the level of pollution/emission caused
by one private diesel car in comparison to the
pollution/emission caused by the diesel bus?
(4) Why should not the grant of more permits on
crowded routes be considered so as to ease the
over-crowding of buses.
(5) What action has been taken against the
buses involved in fatal accidents and the figures of
cancellation of permits of such buses involved in
total fatal accidents be furnished and the average
period for which a bus involved in a fatal accident
is impounded be brought on record?
(6) How many more traffic police personnel are
required so as to meet with the problem of
increased traffic in the city?
(7) What steps have been taken to fix more
cameras on the crossings to record the movement
of the traffic and traffic violations?
(8) What is the present requirement of the
public transport vehicle in the light of the
Hon‟ble Supreme Court‟s direction s
indicated by the Environment Pollution
(Prevention & Control) Authority to be of
10,000 vehicles in 1998. The 1998 direction
by the Hon‟ble Supreme Court to be of
10,000 buses is required to be brought to the
current level by proportionally calculating
the increase in the amount of transport
vehicles involved?
(9) What immediate steps for immediate
augmentation of the public transport vehicles are
being taken so as to comply with the directions
given by the Supreme Court of having 10,000
vehicles as of 1998 to begin with and the projected
enhancement after taking into account the
passage of one decade subsequently?
(10) How many installation of pelican signals apart
from providing more foot over bridges and
pedestrian crossing at highly populated roads are
being considered?
(11) The response to the feasibility of
permitting superior public transport facilities
at higher charges including air conditioned
public transport vehicles for citizens who
would like to avail the public transport at
charges higher than blue line and DTC buses
should be indicated.
(12) While augmenting the fleet of public
transport buses the various modes including
the battery operated busses shall also be
considered."
6. We have taken note of the aforesaid aspects to highlight
various issues which are raised and dealt with in this public interest
petition. However, when proceeding further, we are going to keep
aside ( so far as this order is concerned) other issues and would be
confining ourselves to the issue raised in the various CMs filed by
different parties. It relates to the withdrawal of the blue line buses
from the city; the validity of Cluster Scheme introduced by the Court;
the requirement of public transport vehicles in the city and making
provision for adequate public transport keeping in view the requisite
requirement of public transport to cater the need of this city. It is
because of the reason that these are the issues which have arisen in
the applications on which arguments were heard by us and,
therefore, these are the issues which need to be focused in this
order.
Central Theme of this PIL:
7. Two important points need to be emphasized at this stage; (i) it
was felt not only by the Court but by the official respondents as well
as NGOs and other public spirited persons that blue line buses are a
menace to this city and needed to be erased from the public
transport system, (ii) the Government was directed to formulate a
proper policy and provide better public transport system in this city
including adequate number of public transport buses.
8. It would be also be relevant to point out at this stage that vide
its letter dated 19th July, 2007, the Environment Pollution (Prevention
& Control) Authority had sent a copy of the report prepared by the
said Authority and submitted to the Supreme Court on the need to
augment and restructure public transport system. In this report, the
existing status of public transport system was critically commented
upon. Among other things it was also pointed out that the buses
operate under different arrangements and licensing systems issued
by the State Transport Authority for different types of bus system
which include:-
1. Permits for stage carriage: Buses that ply under this
scheme form the spine of the city bus service. These
operate on routes specified by the State Transport
Authorities and are available round the clock. This
service is provided by the state owned Delhi
Transport Corporation (DTC) and the private bus
operators who are licensed by the State Transport
Authority.
2. Permits for buses under contract carriage: These
buses are not part of the city bus service but operate
on the basis of private arrangements and operate
point to point as chartered services catering to niche
groups like office goers, school children on fixed
routes and time. Though these buses cater to
significant travel demand they are not part of the
regular city bus service.
3. Buses on tourist permit
4. Buses operating under inter-state bus permits. These
buses ply on inter-state routes and can cover a
maximum distance of 16 km within the city.
9. The report recommended that the buses plying under the Stage
Carriage Permit are an important part of the city bus service and
should be the immediate focus of improvement. This report had also
given the figures of buses plying under the Stage Carriage and
Contract Carriage Permit. The report had emphasised that in M.C.
Mehta case (supra), the Supreme Court in its directives issued in
1998 had assessed the requirement of 10,000 Stage Carriage buses
by the year 2011 in the city which order had been floated as the City
was short of approximately 4000 buses. It was, inter alia, due to the
reason that State investment in purchase of new DTC buses had
been stagnated after the initial fleet expansion. The report had also
assessed the role of buses in transporting the people in the city as
per which 60% of the traveling demand in the city was met by the
buses. It was also noted that Delhi Metro Rail Corporation (DMRC)
network of 65.1 km transports over half a million commuters daily.
The DTC was carrying 2.5 million people and the private buses were
ferrying 6.2 million per day. This total number of passengers carried
out by all buses as well as Metro was roughly 9.2 million each day.
Other passengers trips were through the modes of cars, taxies, two
wheelers, three wheelers and non-motorized vehicles, rickshaw etc.
10. What is important here is that the buses carried 73% of the city
people in 2003 and Metro roughly 4% of the city‟s people. About 20%
of the city commuters use other means of transport.
11. The report also analysed and addressed the management
imperatives of the buses in Delhi. On the one hand, it had
commented about the administrative inefficiency operative losses
and poor cost recovery of the State owned agency namely DTC, at
the same time, it was commented, on the other hand, that private
bus operators were totally unorganized and incapable of providing
efficient and quality and most importantly safe service. Following
comments were made about the private operators:-
"This completely unplanned privatization has over
time attracted small time investors, which today
run and operate the city bus service of this mega
capital city. It is even difficult to estimate the
actual numbers of private bus operators because
records maintained by the state transport agency
do not provide full details on the identity of the bus
owner or operator. The buses also work under a
complicated lease and contract system, which
means that their registration and ownership passes
over many hands.
However, a careful assessment of this highly
„imperfect‟ and „inadequate‟ date indicates that
there are numerous operators who won only one
bus. It appears that approximately 80 per cent of
the 3999 odd individual private buses in the city
are owned by single-bus owners."
12. The report thus suggested proper planning for modern bus
technologies and information management systems and gave
recommendations in the following manner:-
"6. Planning for modern bus technologies and
information management systems.
It is important for the city to procure buses, which
are generation-next. These buses must be
modern, fuel and emission efficient and have
conveniences that will attract car owners to switch,
including air conditioning systems and GPRS
tracking systems.
It must be understood that CNG buses which will
now be procured for use will be in operation for the
next 10 to 15 years. Therefore, efforts must be
made so that these buses provide advanced
emission control as well as greater in-built safety
and reliability. In addition, the bus systems should
be integrated with modern tools of tracking system
is being successfully tried in the city of indore,
where the city bus company is operating buses
with centralized tracking and current information
system."
13. The report concluded with certain recommendations,
illustrating the same as under:-
"8.Recommendations and directives sought
from the Hon‟ble Court.
What is evident is:
a. The city added roughly 1000 new personal
vehicles each day last year and during the
same, period it added only 65 buses over the
entire year on the roads.
b. Each DTC bus transports roughly 1000 people
each and each private bus carries roughly 1600
people each day. In comparison a car or two-
wheeler carry only 1 to 1.5 people each day.
c. Clearly, this mismatch will lead to increased
numbers of private vehicles on the road, which
then adds to pollution and congestion.
Therefore, even as the city rightly plans for
mass transportation by metro and other mass
transit systems, it desperately needs to upgrade
the number of buses on its roads.
Firstly, it needs to become compliant of the
1998 Supreme Court directive for 1000 buses.
It needs to fill the gap of 4000 missing buses
immediately.
Secondly, it needs to increase the number, set
in 1998 for 2001 population, by adding buses
beyond the ordered 10,000 on its roads.
Keeping in mind the population increase in the
city, it would be important to have an additional
6,000 buses on the roads within the next 2
years.
However, these buses must be technological
modern; run on clean fuel, they should run
efficiently with revamped management systems
and should use modern management and
technological tools for better performance. In
addition, the attempt should be to run the
buses, as far as possible, on dedicated bus
ways which will increase speed and efficiency.
The following directives of the Delhi
Government are sought;
1. To become compliant with the July 1998
Supreme Court directive by adding 4,000
buses to the city bus fleet by end 2008.
2. To add another 6,000 buses by end 2009.
3. To restructure the institutional and
management systems of the bus service so
that it is both efficient and effective by end
2008.
4. To ensure that the buses that are added to
the fleet are technologically modern, run on
CNG with efficient emission control systems
and provide convenient and preferred travel
for commuters.
5. To review and rework current tax policies
related to the transportation so as to provide
incentives for public transportation and
maintain and effective differential in favour
of buses as against personal transport.
6. To ensure that the buses on the roads are
effectively integrated with other public and
mass transportation systems like the metro,
rail and proposed light rail systems.
7. To ensure that as far as possible, the buses
are provided with dedicated bus-ways, which
will increase their efficiency and speed."
14. The Government of NCT of Delhi also filed its response/Counter
affidavit on 30th July, 2007 addressing various concerns which were
enlisted by this Court vide its aforesaid orders. The Government also
enumerated the steps which were being taken and were proposed to
be taken for tackling those issues. Again we are not touching other
aspects for the reasons pointed out above. However, what needs to
be emphasized is that the Government accepted the fact that the
accident caused by the blue line buses, in which many innocent
people lost their lives, was receiving proper attention at its hands.
The Court was informed that a permit condition was made in June,
2004 according to which if any transport vehicle committed two fatal
accidents, the permit of the same was liable to be cancelled.
However, because of increase in these accidents, the State Transport
Authority decided to initiate cancellation proceedings in case of fatal
accidents referred by the Delhi Traffic Police where particularly speed
device was found to be tampered, removed or non-functional. This
affidavit further stated that meetings which had taken by the Chief
Minister on 6th July, 2007 and 9th July, 2007 wherein serious note of
such menace was taken and the requisite action plan drawn. We
would like to reproduce this part of the affidavit in extenso:-
"That the Government of NCT of Delhi has also
taken a serious note of the continuing incidents of
fatal accidents recently involving these Private
Stage Carriage Buses. The matter was reviewed at
the highest level for analyzing the causes and for
taking appropriate corrective steps for saving the
innocent lives while maintaining an efficient and
adequate public transport service. In a meeting
taken by the Hon‟ble Chief Minister, Govt. of BNCT
of Delhi on 6.7.2007, it was concluded that the
existing arrangement of small scale operators with
individual permits issued by the STA was leading to
number of irregularities which were not congenial
to road safety. Some of these are like the illegal
transfer of permits, profit maximization becoming
the sole motive for operating the service,
avoidance of expenditure on maintenance and
safety equipments and engagement of drivers
without sufficient experience of bus driving in a
large city like Delhi to save up on the operational
costs, tampering with speed governors, over
speeding, overtaking, un-scheduled stoppages,
non-adherence to fixed working hours, etc. all
these were largely contributing to rash and
negligent driving on the roads. The enforcement
actions taken have not resulted n desired
deterrence. In wake of the recurring incident of
fatal accidents this month the Chief Minister had
directed that the Transport Department and Traffic
Police must jointly launch a drive against the
Private Stage Carriages buses operating in
violation of the permit conditions. Parallely a road
map was also prepared on the long term measures
to improve the public transport system in Delhi to
make it befitting a world class city. In the
subsequent meeting taken by the Hon‟ble the
Chief Minister on 9.7.2007 a specific action plan
was drawn up for tackling the situation keeping in
view the larger public interest. The main action
points under this plan are as follows:-
i. Private stage carriage bus operation with
small-scale/individual operators shall be
gradually phased out.
ii. The private sector participation though
cooperate bodies and cooperatives shall be
encouraged and promoted.
iii. Govt. of NCT of Delhi shall immediately invite an
Expression of interest from companies and
cooperatives with capacity to operate at least 100
buses; for grant of Stage Carriage permits on
completely vacant and partially vacant bus routes.
iv. The existing permit holders of Private Stage
Carriages (Blue-line) buses in their own business
interest, shall be considered for the grant of stage
carriage permits only if they reorganize
themselves in to a cooperative society or company
and get the same registered under the relevant
statute.
v. The permits of private stage carriages which
have expired/will be expiring on completion
of five years, shall not be renewed and
temporary permits for 4 months shall be
issued in lieu thereof, if the permit holder is
interested to continue the operation will the
new scheme is implemented.
vi. 643 Stage Carriages permits were deposited for
replacement of vehicles till 6.7.2007., but the
permit holders have failed to induct the new
vehicles on these permits and thus their permits
shall be cancelled forthwith.
vii. The private stage Carriages blue-line buses
completed/completing 10 years on Stage Carriages
permits after 6.7.2007 shall be replaced on the
condition that the induction of another bus on the
Stage Carriages shall be allowed to operate till the
currency/validity of the permit (i.e. 5 years) and
shall carry no guarantee for renewal of permit or
grant of fresh permit.
viii. An intensive drive should be launched by
Enforcement Agencies (Transport and Traffic
Police) to ensure strict compliance of permit
conditions by Private Stage Carriage Buses.
ix. DTC shall augment its fleet further to meet at least
60% of the daily requirement of stage carriage
buses in Delhi.
x. School operation by DTC shall be gradually
reduced in consultation with the schools so that
the school managements make alternative
arrangements."
15. A clear decision was thus taken to phase out Private Stage
Carriage buses with small-scale/individual operators (i.e. blue line
buses) and to introduce private sector participation through
cooperative bodies and cooperatives. It was also decided that after
the expiry of existing permit of five years period of these buses, the
same would not be renewed. Instead temporary permits of four
months would be issued in lieu thereof till the new scheme is
implemented. It was also for the reason that operation of these
buses could not be discontinued abruptly keeping in view the need of
number of buses. For this reason, it was stated that the permits on
temporary basis, for four months, each shall be issued in the mean
time.
16. As far as this aspect of the matter with which we concerned
here, it thereafter proceeded with, on the aforesaid lines. This Court,
on the one hand, passed the order extending the period for
augmenting the bus services in Delhi upto 10,000 buses by the end
of March, 2009 and on the other hand, directed that the permit
should not be extended beyond a period of four months at a time.
17. We would also like to point out at this stage that while the court
was seized of this problem, the accident of hit and run by blue line
buses continued unabated. On 7th October, 2007 in a gruesome
accident, seven persons including five women and one infant lost
their lives being run over by a deviant blue line bus. This prompted
the Court to have another emergent look at the operation of the blue
line vehicles and matter was taken up on 8th October, 2007 on being
mentioned by the learned Amicus Curiae and the relevant portion
thereof which is very material for this, order is reproduced:-
"Accordingly, we are issuing notice to the Blue Line
Operators Association and the Delhi Administration
to show cause as to why:-
(a) The scheme for the replacement of blue line
vehicles be not made available to the Court not
later than four weeks from today
(b) Why the vehicles involved in any accident
involving an injury or a fatality be not impounded
under the orders of this court and be only released
after this court is satisfied about the future safety
of the citizens.
(c) Why interim compensation under the Fatal
Accidents Act, 1855/The Motor Vehicles Act, 1988
not be directed to be deposited in the event of an
accident involving an injury or a death prior to the
release of such vehicles.
(d) Why the extension of four months‟ each
permitted by earlier orders of this Court be not
withdrawn.
We make it clear that if an urgent response
to the formulation of the replacement scheme for
the blue line vehicles is not indicated on the next
date of hearing, the court will consider asking
some organization such as IIT Delhi or the RITES to
frame a scheme urgently for the consideration of
the court.
Before the next date of hearing, the Delhi
Administration as well as Blue Line Operators
Association shall also file a reply to the pleas of
the learned Amicus Curiae who had asked for the
following directions to be issued:-
1. The extension granted to the Government
by the Court to frame a scheme be
withdrawn and a scheme be framed by
this Hon‟ble Court.
2. That all buses plying under the Stage
Carriage Permits be directed to deposit a
sum of ` 10 lakhs as security for
disbursement in case of a fatal accident.
3. That all vehicles involved in serious
accidents be impounded and released
after a detailed inspection to be
conducted over two weeks at the Burari
facility. The inspection be carried out
jointly with the ARAI.
4. That in case of a fatal accident the owner,
the driver and the conductor be remanded
to custody forthwith.
5. That Traffic Warden be appointed
forthwith under the scheme to be
approved by this Hon‟ble Court.
6. That all personnel (Motor Vehicle
Inspectors etc.) who grant a fitness
certificate to a bus must be called upon to
explain the circumstances leading to an
accident immediately after an accident.
7. All buses involved in fatal accidents must
not be allowed to ply and the permit
granted must be cancelled in the public
interest.
In so far as the fatal accidents are
concerned, the State and the Blue Line
Operators Association shall indicate as to
out of the fatal accidents of this year, how
many drivers are back on the roads
driving public transport vehicles. The Blue
Line owners shall also file list of each
driver attached to each bus with the
authorities."
18. One thing clearly emerges from above, viz the Government had
decided to phase out the blue line buses and prepared the scheme
for replacement thereof and this move was not only approved by this
Court but was rather inspired by this Court as well the Supreme
Court. By the aforesaid order this Court rather necessitated the
Government to formulate replacement scheme for the blue line
vehicles at the earliest and not to slog over the matter. In response
to this order, status report was filed by the Government on 11 th
October, 2007 and it was stated that the scheme for replacement of
blue line buses shall be filed on or before November 7, 2007. Even
the blue line operator association was called upon to give its point of
view with regard to the formulation of scheme. After taking extension
of time the scheme was eventually prepared and submitted to this
Court. Response of the Amicus Curiae and other parties to the said
petition was also invited.
19. This scheme primarily relates to the operation of buses in
clusters as would be discussed in detail at the proper stage. This
scheme was under the process of finalization. On the other hand, this
Court was simultaneously persuading, prompting and coaxing the
Government of NCT of Delhi as well as DTC to increase the fleet of
DTC buses. In fact, for this purpose, M/s Ashok Layland and TATA
Motors who were to supply the buses to DTC were impleaded as
parties and information elicited from these two manufacturers from
time to time about the feasibility of supply of number of buses by
specified dates. Counsel for the Govt. of NCT of Delhi has been
making statement (s) before the Court on different dates in respect
of orders placed with the aforesaid two manufacturers for supply of
buses. It would be of immense importance to point out at this stage
itself that the city Government as well as DTC had taken decision for
purchase of low floor High Capacity Buses. While this was going on,
the Court, in the interregnum was passing orders permitting the
State to extend the temporary permits for four months at a stretch.
20. With this backdrop, we have reached the stage where issues
involved are to be stated and answered. However, one aspect which
has bearing on the subject matter also needs to be taken cognizance
of at this stage.
21. During the pendency of this Petition certain Writs have been filed
by blue line operators in their individual capacities. One of the
grievances made in the said petitions is that private buses are being
even from the Cluster for which bids are yet to be finalised. In these
writ petitions with lead matter W.P. (C) 931/2010 titled Ram Chander
Vs. Govt. of NCT of Delhi & Ors. the learned Single Judge passed
orders dated 26th May, 2010 giving following directions:-
"It is accordingly directed that till such time, the
successful bidders in the four clusters induct their new
buses pursuant to the award to them of the tender, such
of the temporary permits of the petitioners which have
expired during the pendency of these petitions, or are
going to expire in future, shall be kept renewed on a
purely temporary basis subject to the following
conditions:-
(a) That the petitioners will replace the 10 year old
buses with completely new buses,
(b) That the permits of the stage carriage holders will
be renewed purely on temporary basis and will continue
only till such time that the successful bidders in the four
clusters, in which the petitioners are operating buses,
are able to induct new buses in these routes."
22. The learned Single Judge was conscious of this writ petition and,
therefore, clarified that renewal of the permits would be any further
orders that can be passed by the Division in this petition. This was so
stated in para 11 in the following terms:-
"Upon receipt of such affidavit, the Transport
Department will temporarily renew the permits of
such persons whose permits have already expired
and whose permits are likely to expire hereafter till
such time that the successful bidders are identified
for the four clusters that have been advertised. It is
further clarified that the renewal of these permits will
be subject to any further orders passed by the
Division Bench of this Court in Writ Petition (Crl.) No.
878 of 2007. One of the conditions of such permits
would be that the petitioners must substitute the
existing buses with completely new buses and
further, they will either surrender their permit or shift
to a different route, as per the option exercised by
them, simultaneous with the successful bidder in the
concerned cluster inducting new buses in those
routes."
23. Though, DTC has not acquired 10,000/11,000 buses so far and
the Cluster Scheme has not reached the stage of full implementation
though, tender process is at advanced stage, the Government still
feels that time has come to eliminate all blue line buses from the
roads in this city. According to it, sufficient public transport system is
in place to cater to the needs of commuting public. On this premise,
it has filed Criminal Misc. Appl. No. 17526/2010 seeking vacation of
the stay order dated 26th May, 2010 passed in Writ Petition (C)
931/2010, 1167/2010 and 1874/2010. The Blue Line Operator
Association/Union has opposed the prayer made in this application.
This Association has also challenged the validity and propriety of the
Cluster Scheme by filing Misc. Application for intervention and for
transfer of the certain Writ Petitions pending before the Division
Bench. They have also opposed the introduction of Cluster Scheme.
24. In this backdrop, we had heard the arguments on two issues
which arise for adjudication:-
(i) Whether the Cluster Scheme floated by the
Government of NCT of Delhi is legal and valid?
(ii) Whether stay order dated 26th May, 2010 passed in
Writ Petition (C) 931/2010, 1167/2010 and 1874/2010
needs to be vacated? Incidental issue would be:
whether there is sufficient public transport system
available in the city and, therefore, permits of blue line
buses need not be renewed further?
Validity of Cluster Scheme:
25. The genesis and raison detre for formulating the Scheme is the
order of this Court in these proceedings. As noted above, vide its
orders dated 11th October, 2007, after considering the Status Report
filed by the Principal Secretary/Commissioner (Transport), Govt. of
NCT of Delhi, this Court directed that the Scheme for replacement of
blue line buses be prepared and filed by specified date. The
Transport Department, Govt. of NCT of Delhi had entrusted the task
of providing the required consultancy for formulating the detailed
Scheme, preparation of bid document and bid evaluation to DIMTS
(Delhi Integrated Multi-Model Transit System), a company
incorporated by the Government of NCT of Delhi. DIMTS submitted
the report titled "Report on Methodology for operations of
Privately Owned Stage Carriage Buses in Delhi" on October 31,
2007. The report was examined in Transport Department in
consultation with Planning, Finance and law Departments of Govt. of
NCT of Delhi and thereafter the matter was placed before the Council
of Ministers, Govt. of NCT of Delhi for consideration. The report was
further examined/considered by the Council of Ministers in the
meeting held on November 13, 2007 and it was accepted with certain
observations/modifications. A copy of this report and the modification
suggested thereto has been placed on record. In the Status Report
filed by the Government on 15th November, 2007 a brief resume of
the Scheme is given. The Scheme provides for private stage carriage
buses through corporate entities to replace the existing blue line
buses run by the individual private operators. It is explained in this
affidavit that the choice of private carriage buses through corporate
entities was made keeping in view various factors. Since this report
highlights those considerations and give the over view of the
Scheme, we are reproducing the relevant portion of the said Status
Report hereunder:-
"Main features of the scheme submitted by DIMTS
along with modifications as per the decisions of council
of Ministers, GNCTD which shall now form part of the
said scheme, are as follows:
Problems of Existing System
1. Several defects in the existing system are - accidents
and traffic violations involving the safety of citizens,
undesirable driving practices, undesirable contractual
practices, undesirable vehicle choices and
maintenance, waiting anxiety and unsafe passenger
behavior, lack of adequate service on un-remunerative
routes, inability to realize network benefits, increased
congestion and environmental costs, predation by
incumbents or cartelization, subletting of the
buses/permits etc.
Elements of Reform Model
2. Reform of the private stage carriage system, needs to
address the issue of reducing accidents and traffic
violations. For this the need to address driver
negligence is paramount and any new scheme needs
specific provisions in this area. Such as, on-road,
competition which is the largest systemic contributor to
unsafe driving and accidents would need to be
controlled. A system for monitoring service compliance
would also be required. This is proposed to be
achieved through inexpensive modern location
technology and associated intelligent transportation
systems ITS. In addition, the reformed model
envisages: driver verification and certification,
reduction in waiting anxiety by introduction of
passenger information system (PIS) on the bus and at
bus stops.
Implication for Stakeholders
3. To address the problems identified and to adopt the
solutions proposed, it is suggested-
(i) A new scheme for corporatization of private stage
carriage service under an integrated management for
provision of urban bus transport in Delhi should
progressively replace the existing blue line scheme of
individual operators with a limited number of
operators.
(ii) Neutrality of the management agency will be important
for the integrity of the process, as the oversight agency
(Integrated Mechanism) will be responsible for
monitoring and analyzing the date to ensure adherence
to performance parameters and levy fines and award
bonuses as specified.
Objectives of the scheme
4. The objectives of the scheme are to provide for
operations of privately owned stage carriage buses in
Delhi keeping in view the following characteristics:-
a) Safety in all its aspects.
b) Universality, i.e. availability of service on all scheduled
routes.
c) Cost effectiveness, so as to minimize the user tariff and
economically self-sufficient operations to the extent
possible alongwith continuous improvement of the
service
d) Integrated character, punctuality and passenger
comfort to attract existing private transport users to
the public transport.
Integrated mechanism
5. There shall be an Integrated Mechanism and it has
been decided to appoint the DIMTS as the Integrated
Mechanism. The contractual agreement shall be
signed between the integrated mechanism and the
operators. There shall be three agreements regarding
advertisements, off-board passes and performance
standards. The integrated mechanism shall also enter
into an agreement with the government and the DTC
about their respective roles and responsibilities on
mutually agreed terms and conditions. While securing
compliance with the contractual obligations shall vest
in the integrated mechanism, it shall be without
prejudice to the statutory role and responsibilities of
the Government and the STA.
Route Structure
6. All the existing bus routes will be covered by the
scheme in a phased manner. The existing routes will
be clustered into a bunch of routes. Each cluster will
have the following characteristics:-
(a) Routes that have a substantial number of contiguous
sections that are common may be in the same cluster.
(b) Each cluster may require a minimum of 200 buses to
service at peak hours.
(c) The clusters would contain a mix of viable and non-viable
routes.
Ownership
7. Each of these route clusters will be serviced by a single
private operator and DTC to minimize on-road
competition. The selection of the private operator will
be through competitive bidding. Each of the private
operators will be of corporate entity as also cooperative
society of SC/ST. Each entity will have to meet a
prequalification test, where specific pre-qualification
criteria such as financial strength and operational
experience will be defined. The competitive bids shall
be invited on the basis of best financial offers.
Prospective operators may be allowed to bid for more
than one cluster, but within one cluster there shall not
be more than one private operator alongwith the DTC.
They may be permitted to induct existing stage
carriage buses into their fleet subject to being CNG
propelled, mechanically and physically fit in every
respect, and preferably being not more than three
years old. The buses so inducted shall be complaint
with the provisions of the Motor Vehicles Act and Rules.
They may also require to be refurbished as per the
proposed service specifications (In terms of GPS, PIS
etc.). In drawing up the specifics of the bid document,
it shall be ensured that the various clauses of the bid
document are not only compliant with the provisions of
the Motor Vehicles Act but also in consonance with
various directions of the Hon‟ble Supreme Court and
the Hon‟ble High Court of Delhi. The bid against each
cluster will be carried out in such a manner that it is
completed by June 30, 2009. The principles, and terms
and conditions of the revenue sharing model (between
the Government, the integrated mechanism, and the
operators. Shall be formulated and finalized in the bid
document.
Obligation of Integrated Mechanism
8. The private operator will be required to provide a
scheduled bus service based on a Unified Time Table
and collect fares as decided by the Government. The
operator will have to meet a number of contract
conditions that relate to:
The quality and specification of buses
The qualification and experience of drivers and
conductors.
Adherence to performance parameters."
26. This scheme also provides for minute and detailed
specifications of the buses which the bus operator will be required to
arrange, the eligibility criteria and standards required of drivers and
other bus cruise, unified time-table on which the buses shall run,
ticketing system, other off-board revenue, management of off-board
revenue, fares and revenue, performance management, penalties for
non performance, relative performance bonus, bus stops and depots,
legal obligation and implementation schedule. We are not
reproducing that part which is not be relevant for our discussion but
would like to take note of the following performance parameters, bus
stops and depots provided therein which is of relevance for this
case:-
"Performance Parameters
The bus operator will be required to meet pre-specified
performance parameters. This will be measurable and quantitative
to the extent possible and would be in addition to statutory permit
conditions. In addition to basic permit conditions specified by STA
these parameters will include in the contractual agreement, inter
alia, the following:
(a) Safety, as measured by parameters such as
I. Accident rates and type of accident
II. Adherence to Speed Limits, measured by location
data.
III. Stopping at specified stops, and the time of
stoppage to be monitored with the help of the
location control system.
IV. Adherence to credentials and qualifications of
drivers.
(b) Regularity, based on the number of completed trips
(c) Punctuality, measured by adherence to the time-table.
This will be monitored by the use of location data.
(d) Absence of operational infractions such as
I. Improper stopping at bus stops
II. Picking up and discharging of passengers at points
other than stops
III. Unreasonable delay
IV. Un-authorised overtaking of buses on the route.
(e) Bus maintenance, measured by incidents of mechanical
failure in operation and absence of pre-specified
infractions, e.g.:
I. Defective lights
II. Lack of route displays
III. Broken seats and windows
(f) Cleanliness of buses, based on inspections and passenger
surveys.
Bus Stops and Depots
The Government of the NCT of Delhi will endeavour to
facilitate the creation of required infrastructure such as
bus depots, bus terminals, bus queue shelters, etc. and
make available use by the private bus operators on terms
and conditions negotiated and finalized separately. Each
important bus stop will be progressively provided with
equipment that will permit communication with the
control centre and display real-time information with
regard to operation of relevant buses. This will address
the waiting anxiety of passengers and improve safety by
reducing the incentive to stand on the road to look out for
buses as well as reduce overcrowding."
27. We would also like to point out that implementation schedule of
this scheme was also given as per which entire thing was to be
introduced and completed by June, 2009. Simultaneously, the Court
was informed that the Government intended to phase out the bulk of
blue line buses by June, 2009. The learned Amicus Curiae had filed
response to this report on 29th November, 2007 commenting on
some of the aspect of the scheme and pointing out certain
aspects which the scheme does not provide for. To put in nut
shell, the response to this report is that a holistic approach to deal
with the issue of providing public transport system in the city is
needed and in the process related issues of streamlining traffic,
regulating the constructions on road, proper town planning system,
future projection of buses and population etc. need to be addressed
and the measures should be taken. On this basis, following
suggestions are given by the Amicus Curiae:-
"i. Placing more buses on Delhi roads by revamping
the DTC as has been done in cities like Mumbai and
Indore by inter alia following the pattern of the Delhi
Metro Rail Corporation Ltd.
ii. Restructure the corporations scheme by inviting
tenders including global tenders from interested parties
for running their own fleet of buses.
iii. Develop better technology to ensure passenger
safety and convenience.
iv. Direct the Govt. of NCT of Delhi to have a
permanent cell for Road and Infrastructure Planning in
the Nation Capital Region in the State Transport
Authority.
v. On the inability of the Govt. of NCT of Delhi to
provide additional buses after phasing out blue line
buses, the kilometer Scheme should be introduced.
vi. Expert advice should be obtained from global
players as also like the Bombay Electricity Supply &
Transport Undertaking for running the public transport
system in the National Capital Region."
28. We may point out at this stage that this response was filed in
November 2007 and thereafter various orders were passed from
time to time impressing upon the Government to speed up the
process of acquisition of new and more buses by DTC and the DTC
even has increased its fleet over a period of time though it has not
been able to achieve the target of acquisition of 11,000 buses.
However, in so far as introduction of Cluster Scheme is concerned,
we may put on record that at the time of arguments the learned
Amicus Curiae supported the Scheme. His submission was that
expert bodies had, after due application of mind, come to the
conclusion that such a scheme would be feasible for the city of Delhi
and there was no reason to tinker with the same. Moreso, when it
was the policy decision taken by the Government keeping in mind all
relevant parameters. He, however, highlighted and made a
passionate plea that if the public transport system was to be totally
streamline and so as to achieve the world class standards, much
more was needed to be done at Government‟s level. The
submissions made on this aspects are not relevant for the issue we
are discussing at present, however, as we intend to give certain
directions while closing this order, those suggestions are pointed out
and necessary directions were issued in that part of the order.
29. Coming to the objections of the blue line operators and their
Association (s), the basic premise of the attack is that this Cluster
Scheme is in violation of the provisions of Motor Vehicles Act. The
broad submission in this behalf was that if this Scheme violates the
statutory provision, mere fact that it was prompted of the orders of
this Court would not save such a scheme. Developing this argument
it was submitted that the eligibility criteria provided in Cluster 1 was
in the teeth of the provisions of Motor Vehicles Act. This eligibility
criteria reads as under:-
"4.2.1.The Applicants eligible for participating at
the Qualification Stage shall be any one of the
following:-
Type 1: A Business Entity; or
Type 2: A Co-operative Society of Scheduled
Castes or Scheduled Tribes (SC/ST) registered in
Delhi under Delhi Co-operative Societies Act, 2003
on or before Application Due Date, where all
members of such Co-operative society belong
either to the scheduled castes and/or the
scheduled tribes; or
Type 3: A Business Entity promoted by stage
carriage bus operators with
(a) The shareholders, holding a minimum of
twenty-five (25) and a maximum of thirty-five (35)
Permits issued by the State Transport Authority,
Delhi valid on March 31, 2007, and
(b) Where such shareholders commit to hold a
minimum equity stake of 51% in the aggregate
shareholding of the business entity to be formed
under the Indian companies Act, 1956; or
Type 4: A combination of a maximum of five (5)
members, comprising one Lead Member who is a
Type 1/Type 2 entity with other members who are
type 1/Type 2/partnership Firm/registered Co-
operative Society/ individual entity and shall
hereinafter be referred as "Consortium".
The Applicants under the category of Type 4, in
the event of being declared the Successful Bidder,
would be required to incorporate a Special
Purpose Company as a public limited company in
accordance with the provisions of the Indian
Companies Act, 1956.
Further, in the event of Type 2 Applicant being
declared as the Successful Bidder for the Project,
it would be required to amend its bye-laws in
conformity with the bye-laws, as prescribed under
Section 11 of Delhi Co-operative Societies Act,
2003."
30. The qualification stage is defined, in the scheme, as under:-
"Qualification Stage" refers to the first stage of the
Bidding Process, which involves qualification of the
Applicants for the second stage".
31. Business entity specified in Type 1 is assigned the following
meaning under the scheme:-
"Business Entity" shall mean either of the following:
(i) a company incorporated under the
Companies Act, 1956, but excluding
companies covered under Section 617 of the
Companies Act, 1956; or
(ii) an entity incorporated outside India under
equivalent law."
32. According to the learned counsel appearing for blue line
operators, para 2.2.1 of the Cluster 1 Scheme indicates that the mind
of the Government wherein it is stated that it has come to the
conclusion that operation of buses through individual operators is
not congenial for maintaining an efficient, reliable and safe bus
service. With this aim in mind, confining the eligibility criteria to the
business entity namely companies or the Co-operative Societies of
Scheduled Casts or Scheduled Tribes, individuals were excluded from
participation which were anathema and contrary to the spirit of the
Motor Vehicles Act, the learned Counsels submitted in this behalf that
the very purpose of enacting Motor Vehicles Act in the year 1988 was
to encourage individual private carriage and that too, an individual.
Heavy reliance on a judgment of Supreme Court in the case of
Mithelesh Garg and Others Vs. Union of India And Others,
(1992) 1 SCC 168 was placed wherein the Supreme Court took note
of the Statement of Objects and Reasons appended to this Act while
repelling earlier Motor Vehicles Act, 1939 wherein it was stressed
that this legislation was enacted to take care of the greater flow of
passenger and freight with the least impediments so that islands of
isolation are not created leading to regional or local imbalances and
Act specifically provides for "liberalized schemes for grant of stage
carriage permits on non-nationalised routes, all-India Tourist permits
and also national permits for goods carriages....". Following
passages from this judgment were specifically read out:-
The Parliament in its wisdom has completely
effaced the above features. The scheme envisaged
under Section 47 and 57 of the old Act has been
completely done away with by the Act. The right of
existing-operators to file objections and the
provision to impose limit on the number of permits
have been taken away. There is no similar
provision to that of Section 47 and Section 57
under the Act. The Statement of Objects and
Reasons of the Act shows that the purpose of
bringing in the Act was to liberalize the grant of
permits. Section 71(1) of the Act provides that
while considering an application for a stage
carriage permit the Regional Transport Authority
shall have regard to the objects of the Act. Section
80(2), which is the harbinger of Liberalisation,
provides that a Regional Transport Authority shall
not ordinarily refuse to grant an application for
permit of any kind made at any time under the Act.
There is no provision under the Act like that of
Section 47(3) of the old Act and as such no limit for
the grant of permits can be fixed under the Act.
There is, however, a provision under Section
71(3)(a) of the Act under which a limit can be fixed
for the grant of permits in respect of the routes
which are within a town having population of more
than five lakhs."
xxxxx
"It is thus a guaranteed right of every citizen
whether rich or poor to take up and carry on, if he
so wishes, the motor transport business. It is only
the State which can impose reasonable restrictions
within the ambit of Article 19(6) of the Constitution
of India. Section 47(3) and 57 of the old Act were
some of the restrictions which were imposed by
the State on the enjoyment of the right under
Article 19(1)(g) so far as the motor transport
business was concerned. The said restrictions have
been taken away and the provisions of Section
47(3) and 57 of the old Act have been repealed
from the Statute Book. The Act provides liberal
policy for the grant of permits to those who intend
to enter the motor transport business. The
provisions of the Act are in conformity with Article
19(1)(g) of the Constitution of India. The
petitioners are asking this Court to do what the
Parliament has undone. When the State has
chosen not to impose any restriction under Article
19(6) of the Constitution of India in respect of
motor transport business and has left the citizens
to enjoy their right under Article 19(1)(g) there can
be no cause for complaint by the petitioners."
33. The learned counsel also referred to the following provisions of
Motor Vehicles Act:-
Section 2(40)
(40) "stage carriage" means a motor vehicle constructed
or adapted to carry more than six passengers excluding
the driver for hire or reward at separate fares paid by or
for individual passengers, either for the whole journey or
for stages of the journey.
Section 2 (7)
(7) "contract carriage" means a motor vehicle which
carries a passenger or passengers for hire or reward and
is engaged under a contract, whether expressed or
implied, for the use of such vehicle as a whole for the
carriage of passengers mentioned therein and entered
into by a person with a holder of a permit in relation to
such vehicle or any person authorised by him in this
behalf on a fixed or an agreed rate or sum -
(a) on a time basis, whether or not with reference to any
route or distance; or
(b) from one point to another, and in either case, without
stopping to pick up or set down passengers not included
in the contract anywhere during the journey, and includes
(i) a maxicab; and
(ii) a motorcab notwithstanding that separate fares are
charged for its passengers;
Section 81
81. Duration and renewal of permits. - (1) A permit
other than a temporary permit issued under
section 87 or a special permit issued under
subsection (8) of section 88 shall be effective 53[
from the date of issuance or renewal thereof ] for
a period of five years.
Provided that where the permit is countersigned
under sub-section (1) of section 88, such
countersignature shall remain effective without
renewal for such period so as to synchronise with
the validity of the primary permit.
(2) A permit may be renewed on in application
made not less than 15 days before the date of its
expiry.
(3) Notwithstanding anything contained in sub-
section (2), the Regional Transport Authority or
the State Transport Authority, as the case may be,
may entertain an application for the renewal of a
permit after the last date specified in that sub-
section if it is satisfied that the applicant was
prevented by good and sufficient cause from
making an application within the time specified.
(4)The Regional Transport Authority or the State
Transport Authority, as the case may be, may
reject an application for the renewal of a permit
on one or more of the following grounds, namely :-
(a) the financial condition of the applicant as
evidenced by insolvency, or decrees for payment
of debts remaining unsatisfied for a period of
thirty days, prior to the date of consideration of
the application ;
(b) the applicant had been punished twice or more
for any of the following offences within twelve
months reckoned from fifteen days prior to the
date of consideration of the application
committed as a result of the operation of a stage
carriage service by the applicant, namely :-
(i) plying any vehicle -
(1) without payment of tax due on such vehicle ;
(2) without payment of tax during the grace
period allowed for payment of such tax and then
stop the plying of such vehicle ;
(3) on any unauthorised route ;
(ii) making unauthorised trips:
Provided that in computing the number of
punishments for the purpose of clause (b), any
punishment stayed by the order of an appellate
authority shall not be taken into account :
Provided further that no application under this
sub-section shall be rejected unless an
opportunity of being heard is given to the
applicant.
(5) Where a permit has been renewed under this
section after the expiry of the period thereof, such
renewal shall have effect from the date of such
expiry irrespective of whether or not a temporary
permit has been granted under clause (d) of
section 87, and where a temporary permit has
been granted, the fee paid in respect of such
temporary permit shall be refunded.
34. Submission based on the aforesaid provisions was that the bus
operators were entitled to permit for a period of 5 years and not of
four months. Reliance was also placed on a judgment of Supreme
Court in the case of Uttar Pradesh State road Transport
Corporation Vs. Assistant Commissioner of Police
(Traffic),Delhi, (2009) 3 SCC 634.
35. Referring to the provisions of Section 71 of the Act, it was also
argued that requirements of this provision, while introducing the
Cluster Scheme, were not fulfilled which mandated passing of
necessary law by an executive action without which Scheme could
not be introduced. At the end, it was argued that in this very
petition court had passed orders from time to time for private GPS,
speed governors, etc and the Government had also provided BRT
system to avoid road accidents. It was submitted that with these
measures taken, road accidents had sharply fallen down and,
therefore, no meaningful purpose was served in removing the blue
line buses and introducing the Cluster Scheme thereby impinging
upon the rights of these blue line operators who were small time
people and invested hard earned money in purchasing these buses.
36. We have bestowed our serious consideration and cogitated
deeply on this issue. Before we come to the nuances of these legal
submissions, we would like to make a preliminary remark that under
the scheme of the Constitution, the government has the power to
frame its policies for purposes of good governance. Article 162 of the
Constitution envisages such power with the State Government.
37. It would also be necessary at this stage to point out the
schemes which were formulated by the Delhi Government from time
to time in the arena of public transport. The Government has
formulated and implemented policies for permitting private sector
operation in public transport. These policies have been passed on
public requirement and in public interest. The steps taken in this
behalf since 1992 need to be recapitulated in brief. In that year
major scheme which was advertised was " Scheme for Private Bus
Service in Delhi Under Stage Carriage Permits". These Stage
Carriages were known as Redline Buses owing to the prescribed
colour code. In 1992 alone there were 134 Redline accidents, leading
to the colour code of the buses being changed to blue - hence the
Blueline buses. 3000 permits were issued U/s 72 of the Motor
Vehicles Act, 1988 against 10,000 applications. The Scheme
restricted the total number of buses per individual to five and per
company to ten and allowed the prospective permit holders to
remain outside the preview of the Motor Transport Workers Act, 1961
which denies the working conditions of the drivers employed by
owners employing five or more motors transport workers. There were
3304 operators who served 3849 buses. Over the years the Blueline
buses increased their routes while D.T.C. fleet of buses dwindled to
500 in 1996 resulting in only 4500 on 15.6.1998 buses being
available in the city.
38. Between 1998 and August 2000 the Government of NCT of
Delhi notified the nationalisation of all routes in the region (which
was struck down by the Courts) followed by an attempt to attract
private entities - the Global level notice of August 2000 and the
National level notice of October 2002. None of these elicited much
response.
39. The economics of operations between the DTC and Blueline
fleets showed significant dichotomies. In June ‟97 the DTC fleet
operated 2590 buses which travelled 109.40 lakh vehicle kilometres.
The Blueline buses claimed to serve 50 lakh passengers per day and
covered 855000 vehicle kilometres per day with a consolidated fleet
of 3800 buses. However the share of accidents and traffic offences
falling to the lot of Blueline buses was significantly higher.
SHARE OF BUSES IN TOTAL TRAFFIC FATALITIES
Traffic All City DTC Non Share of Share of
Fatalities buses Buses DTC all buses DTC in
buses bus
fatalities
1998 2182 193 76 717 9% 39%
1999 2342 117 57 60 5% 49%
2000 2014 153 37 116 8% 24%
2001 1842 86 26 60 5% 30%
2002 1696 59 29 30 3% 49%
2003 1801 110 40 70 6% 36%
2004 1977 167 57 110 8% 34%
2005 2049 221 64 157 11% 39%
(source Delhi Traffic Police)
OFFENCES COMMITTED BY DTC AND BLUE LINE BUSES
2004 2005 2006
DTC 3904 4815 4612
Blue Line 69282 59536 48750
Ratio 17.7 12.4 10.6
40. Private Stage Carriages (now Blueline buses) were inducted in
1992 to sub-serve the public interest. They were found errant. The
Government, finding it necessary and in the public interest has now
changed the policy and criteria under which the permits are to be
granted to the Private Stage Carriages. The alarming rate at which
accidents were caused by the faulty operation of these blueline
buses shook the conscious of this Court when suo moto notice was
taken of the situation in public interest and the journey in that
direction started with the present petition.
41. The genesis of the present litigation has already been traced
out. To recapitulate, it needs to be emphasized that it is this court
which took suo moto notice of the menace spread on the roads of
this city by these blue line buses crushing innocent people
underneath at alarming rate. It has assumed the shape of an
unchecked monster on the roads which had no sympathy for
children, aged persons or disabled. All such innocent people without
any discrimination or favour were becoming victims when this Court
stepped in. During the proceedings, a view was taken "enough is
enough" and it was absolutely essential in public interest and in the
interest of the people of this city to erase the blue line buses from
the scene. This measure was taken as a last resort when it was
found that further steps taken to control the havoc were not yielding
any results, or atleast desired results. Way back on 31st July, 2007,
an order was passed indicating phase out of the blue line buses from
the city and on the suggestions given by the learned Amicus Curiae
and Government of NCT of Delhi was respondent to those
suggestions. The Government was required to formulate a proper
policy and better public transport system in the city including
adequate number of public transport buses. Thereafter, the matter
proceeded in this direction; albeit other incidental issues were also
taken care of from time to time including action to be taken against
the arraying buses. However one thing was loued and clear. These
blue line buses had to be withdrawn. They were permitted to ply
only because it was found that there were no sufficient number of
buses on the roads to take care of the load of the commuters. It was
for this reasons that the directions were given to renew the permits
of these blue line buses on four monthly bases instead of five years
tenure.
42. The Government of NCT of Delhi, thereafter, worked in this
direction and on the one hand steps were taken to augment the DTC
buses and on the other hand, indepth studies were undertaken by
the expert committees to provide a solution by resorting to alternate
methods of public transport.
43. It is a paramount consideration and has to be kept in mind that
Courts have a role to pay in the promotion of the ultimate social purpose of
"establishing, maintaining and perfecting the conditions necessary
for community life to perform its role in the complete development of
man", as it is said that „life is not mere animal existence‟. The
importance of administration of justice as a fundamental community
principle and as an index of the civilizational ascent and content of
social organization, is reflected in the constitutional directive set out
in Clause (1) of Article 38. Further, the provision of Article 39 (b)
which obliges the State to direct its policy towards securing that the
control of the material resources of the community are so distributed
as best to serve the common good. The concept of common good
has both political and constitutional roots. Measures which promote
the well being of the people are understood as matters of common
good.
44. It is not the function of the Government to keep citizens from
falling into error. It is the function of the citizens to keep the
Government from falling into error. [American Communication
Association Vs. Charles T. Douds, -{1949} 339 US 382]. Courts
interfere in governmental matters, in the interest of good
governance. [ Lakshimi Das Ranchood Das Vs. State of Bombay,
AIR 1952 Bombay]. In order, therefore, that governance is
integrated with administration of justice, the rights, interests, needs
and concerns of citizens must find an appropriate mechanism or
instrument for securing the above said integration. The participatory
role of the Court is further subject to the fine balanced working of
separation of powers, and the importance of primary discharge of
constitutional duties and functions by the respective Institutions of
governance. Within this over arching curve, the Courts can declare
on the rights and interests of the needy sections of the community,
innovate on the contents of such rights,[ U.P.S.E.B. Vs. Hari
Shankar (1979) 1 SCR 355], articulate the judicial supervision of
their enforcement, and define and lay down rules or procedures for
the judicial participation and supervision. When questions of failures,
deficiencies, lapses or illegalities in governance are brought to
challenge, it becomes the duty of the judicial department to deal with
those questions. The role of the Courts in these instances will always
be guided by the concern towards remedying the infringement of the
rights of the weaker section of the community. The principles
relevant to rule of law and administration of justice will also inform
the Courts in dealing with issues of injury to public interest or
infringement of public welfare.
45. Distinction exists between individual rights, claims or needs
and group or collective rights or concerns of the community as a
whole. It is also to be borne in mind that the representative
governance and political participation are expected to deliver to the
needs and requirements of citizens. [Samantha Vs. State of
Andhra Pradesh, (1997) 8 SCC 191] This process of delivery is also
expected to conform to maintaining social balances, cohesions
between individual and group freedoms.
46. Where the causes and impact of litigation may not be confined
to individuals or to mere individual interactions, and the issue or
matter arising for adjudication have community implications or have
impacts upon groups, sections or classes of the community, the
adversarial dimensions of the legal services delivery, are not seen as
appropriate.[Charan Lal Sahu Vs. Union of India (1990) 1 SCC
613]. Two facets of administration of justice become noticeable.
One the mere remedial, problem solving role; the ordering and
intervening role which involves participation in constitutional
implementations. This participatory role serves the ends of
realization of constitutional guarantees, assurances and the
discharge of constitutional directives and obligations.
47. Influenced by these considerations, the Court had stepped in
the present matter in larger public interest. Directions were given to
the Government of NCT of Delhi to evolve a scheme. Unlike those
situations where sometimes there is difference in the perspective of
the judiciary on the one hand and the executive on the other hand,
leading to friction at times, happily, in the present case, the
Government of NCT of Delhi also rose to occasion accepting the fact
that the blue line buses had failed this city and time had come to find
the alternate. Such reality or commonality of the thought process of
the judiciary and the executive in the present case has to be
commended. In this scenario, when we are concerned with the
welfare of the society in general, this public interest and the rights of
the society would outweigh the individual rights.
48. Working in tandem and at the same time discharging its own
executive function as it is the executive which is well equipped with
necessary paraphernalia to study the nitty-gritty and nuances of the
problem and take remedial steps, the Govt. of NCT of Delhi has
introduced the Cluster system. Therefore, unless it is found that this
scheme infringes some statutory or constitutional rights of the blue
line bus operators, it is not the function of this court to sit over the
judgment of the executive and substitute the same with some other
scheme.
49. Mere scope or room for disagreement or scope for alternate
choices for governmental action may not be reasons for intervention .
It can be stated that the judicial review powers of the courts
themselves envisage the authority of judicial intervention in securing
good and accountable governance. Institutions of Justice have a role
of structured involvement in the said process of promotion of social
justice in all its comprehensions. In the instant case, when on the
one hand there is a sense of unanimity among all, including the
public at large, barring the bus operators obsessed by their own self
interest, one thing becomes apparent, blue line buses are not to
operate on the road of this city. That, coupled with the observations
made above, regarding public good which this move would sub serve
in contrast with the private interest of the blue line bus operators, we
proceed to consider legal arguments raised by the counsel appearing
for these bus operators.
50. At the outset we may observe that the judgment of the
Supreme court in the case of Mithelesh Garg, (supra) would not be
of any assistance to these blue line operators (hereinafter referred
to as the „objectors‟). No doubt in the said case the Supreme Court
emphasized the raison d'etre and the objective with which the Motor
Vehicle Act, 1988 was enacted repelling earlier of 1939. No doubt,
the purpose of the new Act is to provide for liberalized scheme for
grant of stage carriage permits. This new Act gives right to the
citizens to take up and carry on the motor transport business.
However, it would not automatically follow therefrom that the
Executive, within the framework of this very Act has no power to
frame any scheme which sub serves common good, welfare of the
public at large and there safety concerns.
51. The very presence of blue line buses on the road gives a baleful
look because of their brazen beheviour. This need not even be
belaboured. Suffice is to say that their reputation is besmirched
beyond repairs. If it is found that a particular scheme (in the instant
case blue line bus scheme) has not served any purpose, nay it has
rather proved notorious and is in conflict with public welfare, the
executive can frame the scheme to do away this evil and having
regard to the ground realities. In fact, the mandate and spirit of
M.C.Mehta (supra), which is also a judgment of the Supreme Court,
is precisely this:-
"3.In our opinion, the provisions of the Motor
Vehicles Act, 1988, in addition to the provisions of
the existing laws, for example, the Police Act and
the Code of Criminal Procedure, confer ample
powers on the authorities to take the necessary
steps to control and regulate road traffic and to
suspend/cancel the registration or permits of a
motor vehicle if it poses a threat or hazard to public
safety. It need hardly be added that the claim of
any right by an individual or even the few persons
cannot override and must be subordinate to the
larger public interest and this is how all provisions
conferring any individual right have to be
construed...."
52. The right under Article 19 (1) (g) would be subject to
restrictions, particularly those which protect the right to life and the
liberty of citizens to move freely within their city. Article 21 is all
pervading in balancing of fundamental rights. The scheme for
phasing out of Blue line buses is indeed a scheme directly within the
ambit and would enjoy the protection of Article 21 of the Constitution
of India.
53. One has to be mindful of the fact that the aforesaid
observations of the Supreme Court in M.C. Mehta case (supra) were
regarding regulation of road traffic and public safety were in the
contest of this city specifically. Sensing the sensitivity of the
problem in Delhi when the Supreme Court made specific pertinent
and focused observations holding that authorities had ample power
to take the necessary steps even to suspend/cancel the registration
or permits of a motor vehicle, if it poses a threat or hazard to public
safety. This dicta of the Supreme Court would prevail over the
general observations made by the Supreme Court in Mithelesh
Garg (supra).
54. It is settled law that the right to life is the paramount right. It
is above all over rights as may be available to a citizen.
Correspondingly, it is the paramount duty of the State to protect the
life of its citizens, especially from wanton killing by reckless driving
of Blue line buses on the roads of Delhi. All statutes and provisions
of law on the basis of which the Blue line bus operators claim any
right or interest seeking extension of permits to ply their buses in
Delhi, will have to be viewed from the perspective of public security
and safety. All statutes would have to be read in consonance with
Article 21. The fundamental right to life takes precedence over all
statutory rights. The right to livelihood of the blue line bus operators,
numbering a few hundred, would have to be subservient to the
larger public interest of safety to other road users. That was the
specific consideration in mind when the Supreme Court passed
orders in M.C. Mehta (supra) and in the instant case we find it
proper to adhere to the same.
55. We do not find that Cluster Scheme violates the provisions of
Motor Vehicles Act. In this scheme four types of eligible bidders are
conceived in the Cluster Scheme. Under Section 71 of the Motor
Vehicles Act cooperatives of SC/STs are to be given preference. In
proviso (iv) of Section 71 (3) (d) the word „or‟ has to be read
disjunctively. It is open to the Government to give preference to any
of the classes mentioned in the said proviso. Accordingly in the
Request for Qualifications and Proposal Document (RFQ) a
Cooperative society of SC/ST is shown as a standalone type entity. A
general Cooperative Society would be eligible if it came as a
combination of a Lead Member who is a Type 1/Type II entity.
Scheme further shows that for the Type III bidders i.e. for a business
entity promoted by state carriage bus operators (i) the requirement
of net worth and (ii) the aggregate net cash accruals of the last two
years is not mandatory. In order to encourage this group of bidders,
the government has made a special concession for them in as much
as they would be required merely to give a commitment towards a
minimum authorized, subscribed and paid-up capital, i.e. a mere
undertaking by them to meet the prescribed requirements would
suffice. The ratio of buses between DTC and private operators would
be 60:40. It is also informed that advertisements have also been
issued in newspapers on 7th January 2001 for bids for Clusters nos.
6,7,8 and 9.
56. As per the Government it has been a conscious endeavour to
weed out the element of competition in the operation of buses in the
new scheme, since it was the element of competition that goaded
the blue line bus operators to drive fast and recklessly, which led to
many fatalities. In the Cluster Scheme there will be no competition
by or for the private cluster operator since the model of business is
without risk for them. All revenue risk would be for the government.
The cluster operator would get a specified amount for the services
provided per kilometer. The cash collection point i.e. the conductor,
will be employed by the government. The Performance Guarantee
from the private operator, would be available to the government till
the end of the Scheme. Strict performance measurements are
stipulated in clause 3 of the cluster agreement. In addition to the
penalties that would be leviable under provisions of the Motor
Vehicles Act, stiff penalties would also be visited upon the private
operators for non-adherence to performance specifications, i.e. for
not meeting the bus-time schedules. For example there are
penalties for poor performance i.e. if one bus trip is missed by the
private bus operator then he would have to pay a penalty of 150% of
the amount that would have been otherwise payable to him for the
trip which was missed. Similarly, there are incentives for good
performance.
57. It would be of interest to mention that in the subsequent bids
for Cluster numbers 2,3,4 and 5, a group of blue line bus operators
has come forward as a Type 3 eligible bidder and has been
successfully awarded one of the Clusters.
58. In the instant case, we have already reproduced the main
features of the scheme. The Cluster Scheme was discussed and
approved by the Council of Ministers of the NCT of Delhi by way of a
Cabinet decision. The Cluster Scheme essentially corporatizes the
running of private Stage carriages on notified routes and imposes
obligations and duties on the entity which would now be running
stage carriages. One salutary purpose of the Scheme is to eliminate
‟....this on road competition is the largest systematic contributor to
unsafe driving and accidents‟.
59. The Cluster Scheme being a policy of the government does not
militate against public interest or against the scheme of the Act.
The framers of the scheme, expert in their field, have taken into all
relevant consideration namely problems of existing system, element
of reform orders and the objectives with which new scheme is
introduced. The characteristics which are kept in mind are:
(i) Safety in all its aspects.
(ii) Universality, i.e. availability of service on all
scheduled routes.
(iii) Cost effectiveness, so as to minimize the user tariff
and economically self-sufficient operations to the
extent possible alongwith continuous improvement
of the service.
(iv) Integrated character, punctuality and passenger
comfort to attract existing private transport users
to the public transport.
60. The scheme which is envisaged talks of integrated mechanism,
route structure, ownership, obligation of the integrated mechanism,
performance parameters, including the steps which the bus operators
in the scheme would adopt in so far as safety measures, regularity,
punctuality, bus maintenance are concerned.
61. As already remarked above, it is settled law that on the
decisions of authority in regard to a policy matter, courts will not
ordinarily interfere. However, Courts do not abdicate their right to
scrutinise whether the policy has been formulated keeping in mind all
relevant facts and whether it is beyond the pale of discriminations or
unreasonableness on the basis of the material on record. Unless the
policy or action is inconsistent with the Constitution and the laws are
arbitrary or irrational or there is abuse of power the Courts will not
interfere with such matters.
62. In the case of Raj Shikshan Prasarak Mandal Vs. State of
Maharashtra and Others (2001) 10, SCC 75 the Apex Court held
as under:-
"3.The grievance of the appellant is that on
consideration of all relevant materials, the
appropriate authorities having accorded
permission for shifting of the school from
Mallapur to Ardhapur and the same having been
cancelled because of issuance of contempt notice
by the High Court, the appropriate authorities
having exercised their jurisdiction vested in law
and having focused their attention to the relevant
materials, the impugned order of cancellation is
not in accordance with law. It is undisputed that
the order of cancellation emanated because of
issuance of a notice under the contempt
proceeding. The shifting of the school from
one place to the other or having an ashram
school at one place is not governed by any
statutory rules and it is in fact a policy
decision of the Government. So long as the
government decision is not actuated with
any malice or is not the outcome of an
arbitrary and whimsical act, the same
should not be interfered with by a court of
law under Article 226 of the Constitution of
India. This being the position and on the
relevant materials, the appropriate authority
having considered the interest of the public at
large and having allowed the shifting of the
school from Mallapur to Ardhahpur, the same
could not have been cancelled on the pretext that
the High Court issued a notice of contempt in the
matter. In that view of the matter, the order of
cancellation has to be set aside and we
accordingly quash the same. Since the parents of
the students studying in the ashram school at
Mallapur had made a grievance, the appropriate
authority may reconsider their grievance and, if it
is found that they are justified in their grievance,
may pass appropriate orders with regard to the
prayer for cancellation of the permission granted.
This may be done within a period of three months
from today and until final orders in that respect
are passed, the school which is now functioning
at Mallapur should be allowed to continue at
Mallapur. The appropriate authority should also
consider the question whether the recognition
granted should be allowed t continue or not. The
appeal stand disposed of according."
63. The Supreme Court in the case of Indian Charge Chrome
Ltd. and Another Vs. Union of India and others, (2006) 12 SCC
331:-
"Then the question is whether there is anything in
the process of decision making by the State
Government that makes the decision itself vitiated.
What is contended is that the Chahar Committee
had recommended that the distribution be made
among the various applicants and that OMC was
not eligible for getting a lease of any extent. It was
when that recommendation was put up that the
concerned Minister made a noting indicating a
sudden turn around, recommending consideration
of the question whether the lands or the area
available with the State, should also be divided
among the private operators and whether it would
not be in the interests of a just and equitable
distribution of the ore and the protection of the
environment, to have the area in a bloc for being
exploited by OMC. It is true that the earlier stand of
the Government was that leases could be granted
to private players including industries established
in the State for captive mining. But, when the
recommendation of the Chahar Committee was put
up before him for his final view, it was open to the
Minister concerned to go through the report and
record his views thereon. In fact, Chahar
Committee report itself had indicated some of
these aspects, though it had overridden them and
made recommendations for grant of leases to the
various applicants in the light of the directions of
this Court and the High Court. If a Minister, on
going through the report, feels that the aspects
highlighted in the report themselves would justify
the retaining of the resources with the State so as
to ensure a just distribution of the mineral among
the needy and for protection of the environment, in
the absence of any other material, it could not be
said that the recommendation of the Minister was
not bona fide or that it was tainted in any manner
by mala fides. It is interesting to note that Mr.
Chahar himself as Secretary of the Ministry
concerned thereafter highlighted the aspects
pointed out by the Minister and recommended in
his capacity as Secretary of the concerned Ministry
that it would be appropriate to retain the area for
being exploited by the Government controlled
corporation. The file shows that this noting of the
Minister in the light of the recommendation of the
Secretary to the Ministry was considered by the
Cabinet and the Cabinet approved the noting of
the Minister or the course recommended therein to
exploit the mineral through OMC and not to divide
the balance area left with the Government among
various private entrepreneurs. The decision was
reiterated by the Cabinet and a request was made
by the State Government to the Central
Government for approval of this proposal. There
is nothing to show that the noting of the
Minister was tainted in any manner or that
the subsequent cabinet decision was vitiated
for any reason that could be gone into by the
Court. In a sense, counsel for OMC and the
State of Orissa are right in submitting that it
was really a policy decision and the role of
this Court in respect of such a policy decision
and its scrutiny was limited and within the
scope of that limited scrutiny, there was no
justification in interfering with the decision
of the Government. Of course, as we have
indicated earlier, it is for the Central Government
to give its approval or not to give its approval to
the proposal of the State Government. The Central
Government is yet to take a decision. Since, we
have not reached that stage, we are also not called
upon to pronounce on it at this stage.
64. In Ram Singh Vijay Pal Singh and others Vs. State of U.P.
and others, (2007) 6 SCC 44, the Apex Court held as under:-
"Mr. Dinesh Dwivedi, learned senior counsel for the
appellant has next submitted that the writ
petitioners were earlier carrying on business from
their own premises in Purana Galla Mandi in the
city of Pilibhit and they shifted to Nawin Mandi
Sthal, where the Mandi Samiti had made
construction of shops and godowns, etc. which is at
considerable distance from the city and which
lacked basic infrastructure, on the assurance given
by the Mandi Parishad that the business premises
would be sold to them on hire-purchase basis.
Learned counsel has submitted that after having
shifted to the Nawin Mandi Sthal which caused
considerable inconvenience to the traders, it is not
open to the respondents to contend that the
business premises would be given to them by the
Mandi Samiti on lease or rental basis. In this
connection it may be pointed out that the writ
petitioners have not filed any document
whatsoever to show that either it was held out or
any assurance was given by the respondents that
the business premises would be sold to the
petitioners on hire-purchase basis or otherwise. In
fact, there is not a single piece of paper on record
to substantiate the allegation made by the writ
petitioners. Whether the shops, godowns and
sheds of the Mandi Samiti, which have been
allotted to the writ petitioners, should be given to
them on lease or should be sold to them on hire-
purchase basis, is purely a matter of policy as the
property belongs to the Mandi Samiti or the Mandi
Parishad. It is for the Mandi Samiti or the Mandi
Parishad to take a policy decision in this regard
and the Court cannot examine the correctness or
otherwise of the said policy except in a very
narrow compass.
In Netai Bag v. State of West Bengal AIR 2000 SC
3313 , this Court held as under in para 20 of the
reports:
20. The Government is entitled to make
pragmatic adjustments and policy decision
which may be necessary or called for under
the prevalent peculiar circumstances. The
court cannot strike down a policy decision
taken by the Government merely because it
feels that another decision would have been
fairer or wiser or more scientific or logical. In
State of M.P. v. [1987] 1SCR1 it was held that the
policy decision can be interfered with by the court
only if such decision is shown to be patently
arbitrary, discriminatory or malafide. In the matter
of different modes, under the rule of general
application made under the M.P. Excise Act, the
Court found that the four different modes, namely,
tender, auction, fixed licence fee or such other
manner were alternative to one another and any
one of them could be resorted to....
65. In the well known case of BALCO Employees Union Vs.
Union of India, 2002 (2) SCC, a three Judge Bench summarized the
law on the point as under:
"In a democracy, it is the prerogative of each
elected Government to follow its own policy. Often
a change in Government may result in the shift in
focus or change in economic policies. Any such
change may result in adversely affecting some
vested interests. Unless any illegality is committed
in the execution of the policy or the same is
contrary to law or mala fide, a decision bringing
about change cannot per se be interfered with by
the Court. It is neither within the domain of the
Courts nor the scope of the judicial review to
embark upon an enquiry as to whether a particular
public policy is wise or whether better public policy
can be evolved. Nor are the Courts inclined to
strike down a policy at the behest of a petitioner
merely because it has been urged that a different
policy would have been fairer or wiser or more
scientific or more logical.
Wisdom and advisability of economic policies
are ordinarily not amenable to judicial review
unless it can be demonstrated that the policy
is contrary to any statutory provision or the
Constitution. In other words, it is not for the
Courts to consider relative merits of different
economic policies and consider whether a
wiser or better one can be evolved. In
matters relating to economic issues, the
Government has, while taking a decision,
right to "trial and error" as long as both trial
and error are bona fide and within limits of
authority. For testing the correctness of a
policy, the appropriate forum is the
Parliament and not the Courts...."
66. In Federation of Railway Officers Association and others
Vs. Union of India, (2003) 4 SCC 289 held as under:-
"In examining a question of this nature where a
policy is evolved by the Government judicial review
thereof is limited. When policy according to which
or the purpose for which discretion is to be
exercised is clearly expressed in the statute, it
cannot be said to be an unrestricted discretion. On
matters affecting policy and requiring technical
expertise Court would leave the matter for decision
of those who are qualified to address the issues.
Unless the policy or action is inconsistent with the
Constitution and the laws or arbitrary or irrational
or abuse of the power, the Court will not interfere
with such matters."
67. Thus we agree with Mr. Waziri that public transport has to keep
abreast of the times, both in terms of technology of the vehicles and
sophisticated business models. The old system of operation by single
owned stage carriage permit holders/blueline bus operators is no
more feasible, advisable or permissible. We must bear in mind the
sound advice in the elegy by Alfred Lord Tennyson in The Passing of
King Arthur:-
"The old order changeth, yielding place to
new and the Lord fulfils himself in many ways
lest one custom should corrupt the world."
68. Once we consider the entire gamut of the issue in the aforesaid
perspective, we are unable to agree with the submission that such a
scheme would violate the provisions of Section 71 of the Act. Private
Stage Carriage Permits fall in Chapter V of Control of Transport
Vehicles of the Motor Vehicles Act, 1988. These permits are granted
by Regional Transport Authority on an application made to it under
Section 70 of the Act which reads as under:-
"70. Application for stage carriage permit -
(1) An application for a permit in respect of a
stage carriage (in this Chapter referred to as a
stage carriage permit) or as a reserve stage
carriage shall, as far as may be, contain the
following particulars, namely:-
(a) the route or routes or the area or areas to which
the application relates:
(b)the type and seating capacity of each such
vehicle;
(c) the minimum and maximum number of daily trips
proposed to be provided and the time-table of
the normal trips.
Explanation.- For the purposes of this section,
section 72, section 80 and section 102, "trip"
means a single journey from one point to
another, and every return journey shall be
deemed to be a separate trip;
(d)the number of vehicles intended to be kept in
reserve to maintain the service and to provide
for special occasions;
(e) the arrangements intended to be made for the
housing, maintenance and repair of the vehicles,
for the comfort and convenience of passengers
and for the storage and safe custody of luggage;
(f) such other mattes as may be prescribed.
(2) An application referred to in sub-section (1)
shall be accompanied by such documents as may
be prescribed."
69. Section 71 prescribes the procedure for the Regional Transport
Authority in considering the application for stage carriage permits.
Section71 (2)(d) inter alia provides that the RTA shall in considering
an application have regard to the following matters namely
"(iii) such other matters as may be prescribed by
the State Government".
The Cluster Scheme is formulated under the aforesaid power
conferred upon the Government.
70. In Pancham Chand Vs. State of Himachal Pradesh - (2008)
7 SCC 117), it has been held that the M.V.Act is a self contained code
and that the control by the State 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 lay down a
policy. It says (Para 18)
"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 the Article 162 of the
Constitution of India. Having regard to the
nature and the manner of the control
specified therein, it may lay down a policy.
Statutory authorities 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 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, howsoever high one may
be, he is under law and the Constitution. All the
constitutional functionaries must, therefore,
function within the constitutional limits."
(Emphasis supplied)
71. In Jaintia Hills Truck Owners Association Vs. Shailang
Area Coal Dealers - AIR 2009 SC 3041, it was held that:-
"The provisions of the Act mandate that the
unladen weight and laden weight must be
determined. Indisputably, weighing devices had to
be provided for the said purpose. It is true that
for the said purpose Rules may have to be
framed. It is, however, a well settled principle
of law that even in a case where the statute
provides for certain things to be done, subject
to Rules, any action taken without framing
the Rules would not render any action invalid.
If a stature is workable even without framing
of the Rules, the same has to be given effect
to. The law itself except in certain situations does
not envisage vacuum." (Emphasis supplied)
72. We are of the view that the Cluster Scheme protects the
interests of the Scheduled Castes/Scheduled Tribes. To conclude, we
hold that the scheme as introduced does not suffer from any
illegality, infirmity and is in larger public interest. There is no reason
to cull the same. It, thus, finds our approval.
Renewal of the permits of blue line buses:
73. Once we have given our opinion qua the Cluster Scheme,
natural fall-out is that with the introduction of the scheme blue line
buses are to be given red signal i.e. they have to go off the road.
However, the operators want renewal of permit on the premise that
the aforesaid scheme yet to take off and buses yet to be inducted
under this Scheme. It is also their case that the blue line buses were
to be phased on achieving the target of 10,000/11,000 buses
representing public transport on Delhi roads. This has not been
achieved, argued the learned counsel for these operators and,
therefore, the directions which are given to the Government to renew
the permits should continue. In fact, some of the counsels on their
behalf have argued for grant of five years permits as per the scheme
of the Motor Vehicles Act, 1988. Dilating this argument, it is
submitted that the Apex Court as back as in July, 1998 passed order
directing that in Delhi there must be 10,000 buses upto April 2010
and thereafter the ratio between the public and private transport
fixed was 60.40. 60% is to be plied through public service which is
being provided by DTC and 40% to be provided by private operators.
It is further pointed out that on 23th August, 2007 this Court
directed that there must be 11,000 buses to meet the need of the
traveling public in Delhi and also directed the State Transport
Authority not to renew the permits of the private operators and they
be granted temporary permits. Thereafter this Court had been
monitoring the augmenting of fleet of buses by DTC and had been
extending the grant of temporary permits to the private operators
repeatedly on application filed by the State Government. Mr. D.M.
Sapolia, Principal Secretary-cum- Commissioner, Transport submitted
Status Report and in penultimate para 25 of the Status Report it was
stated as follows:-
"It is pertinent to mention that each cluster of
routes shall be bid out separately so as to
synchronize with the induction/supply of buses as
per the phase out schedule mentioned at
paragraph 22. Thus the phasing out of bulk of the
existing blue line buses and induction of buses by
the corporate/cooperative entities is intended to be
completed by June 30, 2009."
74. It is further argued that the stand of the State Government
always remained that to synchronize phasing out plan with the
induction/supply of buses therefore the permits which were granted
to the private operators are required to continue till the buses are
inducted under the cluster scheme. It is an admitted fact that the
target of 11,000 buses was fixed for Delhi routes accordingly
Transport Department notified unified time table and stop for 11000
Buses. So far DTC is in a position to make 6500 buses. Still there is
a short fall of 4400 buses which are to be inducted through cluster
scheme and admitted position is that no bus under the cluster
scheme has been added and still there is a vacuum and void of 4400
buses without any alternative. The Federation of the Blue Line
Operators about 2300 in number had been operating till December,
2010. Though there is short fall of more than 1700 buses, the
Authority has wrongfully stopped renewing/extending permits of the
private operators.
75. Reliance is also placed on the order dated 26th May, 2010 by
the Learned Single Judge of this Court in Writ Petition 931/2010
directing that the respondents would substitute the existing buses
with the simultaneous induction of buses under the cluster scheme.
Prayer of the government for vacation of this order is opposed on the
ground that the State Government had filed an application for
direction or modification of the said order not in the same court nor
an appeal was filed but an application is filed before this Division
Bench for modification of the order of the said Ld. Single Judge. The
said application is not maintainable in view of the fact that the order
has not been challenged before the Division Bench and the said
order has already attained finality. It is also submitted that the
prayer made in the said application is contrary to the stand by the
State Government in the earlier proceedings in this matter before
this Court.
76. In nutshell, the argument is bolstered on the premise that there
are no adequate number of buses and the position which was noted
in this case as well as in the orders dated 26th May, 2010 by the
learned Single Judge in Writ Petition 931/2010 remains valid even
today and for paucity of adequate number of buses which the
government has failed to supply and there being no change in
circumstances the permits should be renewed.
77. Mr. Vasudev, learned Amicus Curiae, though has argued n
support of the validity of the Cluster Scheme, joined issue with the
Government on this aspect. He submitted that it has been the
consistent stand of the government that it was in the process of
having 11,000 buses available on the roads. There has also been
delay in the implementation of the cluster scheme which replaces the
40% ratio of 60:40 as specified in M. C Mehta which also fails to be
complied with in the event of Blueline buses being phased out. Thus,
his plea was that the policy of the government phasing out of
Blueline buses should be accompanied by induction of an appropriate
number of buses in the ratio accepted by the Government as
recommended by DIMTS. It is vital that appropriate number of buses
be deployed on the routes to ensure that public transport services
are available to all parts of the city.
78. Mr.Tulsi, learned Sr.Counsel as well as Mr. Waziri, Standing
Counsel appearing for the Govt. of NCT of Delhi have, on the other
hand, argued that there is sufficient change in the scenario and the
things have improved remarkably. According to them, the directions
for 10,000/11,000 buses on roads given by the Court was keeping in
view the overall public transport system. Such a direction was not
sacrosanct since there are other mode of public transport now
available and particularly when Metro Rail capacity has been were
appreciably augmented, the overall scenario of the availability of
public transport establishes that adequate public transporting system
is available to cater the needs of the people of this city and time is
right for phasing out blue line buses. In this behalf following
figures are given by the Government in its CM Appl. 17526/2010
which is filed for vacation of orders dated 26th May, 2010 passed by
the learned Single Judge:-
"...... In the last few years DTC has issued orders
for 3775 buses in a phased manner out of which
3495 buses have been received and order for
remaining 280 buses is under process. DTC has a
fleet of about 6180 buses.
Apart from buses owned by DTC, 120 Metro owned
buses and about 1000 light passenger buses are
operating as stage carriage buses. The number of
blue line buses, which mostly operate on
temporary stage carriage permits is about 2300 as
of September, 2010.
In the recent years, there has been considerable
improvement in the private investment in the field
of contract carriage buses, both intrastate and
interstate. In this category almost 8200 CNG
buses were operating as in October, 2010.
The carrying capacity of Delhi Metro has been
considerably enhanced and as of date its daily
ridership comes to 1.4 million passengers. Delhi
Metro is further in the process of adding two
coaches to most of its trains which would take
daily ridership to the tune of 2 million passengers
per day by next year"
79. It is thus pointed out that in the year 2006 there were 3444
buses of DTC which number has gone upto 6237 buses in the year
2010. It is also stated that ridership in DTC buses, during this period
has gone up by three times because of low floor state of art big
capacity buses introduced/acquired by the DTC. It is also mentioned
that in the year 2006, Metro commuting capacity was 0.5 million
which has been increased to 1.5 million. This facilities together with
other modes of transport is sufficient to take care of the ridership
requirement.
80. To begin with, we may state that argument of these bus
operators that permit has to be given, as per Section 81 of the Motor
Vehicles Act, for a period of five years and no less is meaningless and
bereft of any merit. There is a provision for temporary permit
contained in Section 87 of the Act which reads as under:-
"87. Temporary permits.
(1) A Regional Transport Authority and the State
Transport Authority may without following the procedure
laid down in section 80, grant permits to be effective for a
limited period which shall, not in any case exceed four
months, to authorise the use of a transport vehicle
temporarily-
(a) for the conveyance of passengers on
special occasions such as to and from fairs
and religious gatherings, or
(b) for the purposes of a seasonal business, or
(c) to meet a particular temporary need, or
(d) pending decision on an application for the
renewal of a permit,and may attach to any
such permit such condition as it may think fit:
Provided that a Regional Transport Authority or, as the
case may be, State Transport Authority may, in the case
of goods carriages, under the circumstances of an
exceptional nature, and for reasons to be recorded in
writing, grant a permit for a period exceeding four
months, but not exceeding one year.
(2) Notwithstanding anything contained in sub-section
(1), a temporary permit may be granted thereunder in
respect of any route or area where-
(i) no permit could be issued under section 72
or section 74 or section 76 or section 79 in
respect of that route or area by reason of an
order of a Court or other competent authority
restraining the issue of the same, for a period
not exceeding the period for which the issue
of the permit has been so restrained;
(ii) as a result of the suspension by a Court or
other competent authority of the permit of
any vehicle in respect of that route or area,
there is no transport vehicle of the same class
with a valid permit in respect of that route or
area, or there is no adequate number of such
vehicles in respect of that route or area, for a
period not exceeding the period of such
suspension:
Provided that the number of transport vehicles in respect
of which temporary permits are so granted shall not
exceed the number of vehicles in respect of which the
issue of the permits have been restrained or, as the case
may be, the permit has been suspended."
81. Keeping in view this very provision in mind, directions to the
Government was given by this Court more than three years ago that
temporary permit shall be renewed for a period of four month at a
time. Again, as pointed out above, this was a stop gap arrangement.
Since the passing of those orders, permits are renewed for a period of
four months from time to time. This order of the court was never
challenged by these operators earlier. When the issue of phasing out
has cropped up for discussion and the blue line buses are facing
extinction, such an argument predicated on Section 81 of the Act is
sought to be raised.
82. We are also not in agreement with the arguments of these
operators based on the legitimate expectation. It is stated at the
cost of repetition that way back in 2007 these blue line operators
knew the fate they are going to meet in near future. They could get
lease of life from time to time as the Government was not equipped
to take care of the needs of the city in so far as public transport is
concerned. They got the renewal, in the interregnum on four
monthly basis and in this backdrop these operators cannot raise the
plea of legitimate expectation for seeking the renewal of permits for
a period of three years or five years. In so far as new buses inducted
by these bus operators are concerned, it was done at their risk and
cost. In fact, while seeking renewal these bus operators had filed the
affidavit accepting this condition and specifically stated so in the
standard format affidavit, contents of which are reproduced as
under:-
"That I have been abiding all permit conditions and
undertake to comply with all orders/directions,
existing or will be issued in future by the
Government/court. I also undertake to be
responsible for all the consequences and losses. If
anything is due to the proposed replacement and
abide by all the existing provisions of the Motor
Vehicle Act, 1988/CMV Rules 1989/DMV Rules 1993
and STA Resolutions/directions/notification and
amendments made therein future.
That Government/STA/Court will decide any
state that the vehicle which are not single fuel
mode CNG will not be allowed to ply on contract
carriage interstate diesel permit then I shall not
make any claim for the continuation of this permit
and surrender the same in the permanent mode.
That I undertake that I am inducting another
vehicle under replacement of my permit No......... at
my own business risk and responsibility and shall
not claim the renewal/grant of fresh permit, after
completion of validity period of the said permit,
which is expiring on..........."
83. The only question is as to whether adequate transport system
is available as on today which would take care the needs of the
public of the city without putting them to unnecessary
inconvenience.
84. The contentions of the respective parties pointed out above,
would reveal that whereas on the one hand the Government
maintains that there are adequate public transport system is
available to cater to the needs of the residents of this city, the blue
line bus operators maintain that is not so. The argument of blue line
operator is primarily founded on the fact that Supreme Court in M.C.
Mehta case (supra) had observed the need of 10,000 buses and this
Court in this very case had felt that there should be minimum 11,000
buses and not withstanding these figures fixed by the Courts
themselves, the Government has not been able to achieve this
target so far. The retort of the Government to this argument is that
these figures are not sacrosanct which were indicated in the orders
of the Courts keeping in view the ridership. Once we take into
consideration the total ridership and are able to find that there is
sufficient paraphernalia to take care of the ridership, such argument
of blue line operators should not hold the ground.
85. We would like to discant before giving our conclusion. It would,
in the first place, be relevant to sum up the aspects touching upon
the availability of public transport in this city on as on today. They
need to be impressed upon. These are:-
(i) There are 6237 DTC buses available in the
year 2010 as compared to 3444 DTC buses in the
year 2006;
(ii) The new buses inducted by the DTC are low
floor state of art big capacity buses and each bus
can accommodate much more passengers than the
old DTC buses on roads in the year 2006. Therefore,
the number of buses as such, would not be the
correct barometer when significantly high capacious
new buses are inducted.
(iii) In the year 2006, commuting capacity of
Metro Rail was 0.5 million which has been
increased to 1.5 million in the year 2010 and as on
today it is commuting 1.7 to 1.8 million passengers
per day. It is expected to go upto about 2.9 million
per day by the end of 2011. The Government claims
that this capacity would tantamount the fleet of
6500 buses.
(iv) In addition, there are feeder bus service for
"last Mile Connectivity" to the Delhi Metro Station
and "Gramin Sewa" to provide public transport to
rural and congestive areas or unauthorized colonies
where bus service cannot reach because of narrow
streets.
(v) In November, 2007 when the Cluster Scheme
was introduced, the number of blue line buses
operating in Delhi was approximately 3700 while the
number of DTC buses was about 3500. Now just the
DTC buses themselves number about 6300,
including the modern low-floor buses.
(vi) Most importantly, as of December, 10,2010
merely 2041 Stage Carriage Buses (Blueline Buses)
had valid permits. Out of this 1571 permits have
already expired. An additional 142 have expired in
February, 2011 taking the number of expired
permits to 1731.
(vii) The buses whose permits have expired in the
meantime and have not been renewed and
therefore these buses are off the road. Thus as on
today, most of the blue line buses have decimated
and only 328 blue line buses are visible on Delhi
roads. Notwithstanding the same no difficulties are
faced by the commuters in this city who are using
public transport. This fact alone would cling the
issue and confirmed the position taken by the
respondent that sufficient public transport system is
available to take care of the ridership requirements.
86. It is in this scenario, the direction of the Court to have
minimum fleet of 11,000 DTC buses on the roads of this city is to be
appreciated. In this behalf we have to remind ourselves that we are
focusing on entirely different issue, viz in the absence of 11,000
buses on the roads, can the blue line operators demand, as a matter
of right, extension of their permits. Answer to this would be in the
negative once we find that there is no requirement of blue line buses
now and the public transport system is in a position to take care of
the needs. After all, in October, 2007 itself it was made clear that the
blue line buses are to be withdrawn from the city. These buses were,
however, allowed to continue not because on the ground that their
existence on the roads were found justified but because of the
reason that sudden withdrawal of so many number of buses in the
year 2007 would have caused inconvenience and harm to the
commuters as DTC buses available at that time were much less in
number and Metro Rail had not spread its wings far and wide by that
time. The extension of permits was thus, allowed to these blue line
operators as a necessary evil when no other alternative was
available. Having regard to the complete change in scenario, as
taken note of above, when it is felt that time has come that this city
should bid final farewell to these blue line buses, there is no reason
to pass an order for extension of their permits. After all, phasing out
these blue line buses is not a cataclysmic event. Its root go back to
the year 2008.
87. For all these reasons, we do not subscribe to the contention of
the learned counsel for the blue line operators that the Government
should approach the learned Single Judge in Writ Petition No.
931/2010 for variation/vacation of order dated 26.5.2010. While
passing the order, the learned Single Judge was conscious of the
pendency of this writ petition and categorically observed that the
said order shall be subject to the final orders which would be passed
in this matter by the Division Bench.
88. In so far as providing 11000 buses on road is concerned, we
make it clear that it would still be the obligation of the Government
to do so, moreso, to achieve 60 : 40 ratio. On the implementation
of the Cluster Scheme, this would be achieved. The Government is
directed to implement the entire cluster scheme in a time bound
manner. Subject to the above, the prayer made by the Government
in CM 17526/2010 for vacation of order dated 26th May, 2010 is
allowed and all the applications filed by the blue line bus operators
and others are hereby dismissed. However, the buses with existing
permits shall be allowed to ply till the expiry of those permits.
89. We also recommend the Government to look into the
possibility of utilizing all the blue line buses in a meaningful way.
However, what can be the mode and manner thereof is to be left to
the Government. We are bolstered in this observation by the
suggestion which was mooted by Mr. Tulsi himself during the hearing
of this case.
Epilogue:
90. The completeness in this order would not achieve unless some
comments are made about the public transport system including
status of the buses plying on the roads of this city.
91. Issue of safety in public transport system cannot be confined to
blue line buses. No doubt, blue line buses proved a menace and
totally non-feasible and therefore face a total wipe off from the
roads. However, much is required to be done to achieve the safety
norms Often termed the 'killer fleet' for numerous accidents and
deaths, the private bus service has been under fire for quite some
time. Enormous influx of light and heavy vehicular traffic with
tremendous increase in population of Delhi has made the roads of
Delhi increasingly dangerous to human life. Where a common man; a
cyclist; a motor cyclist or a pedestrian is often knocked down by the
DTC, blue line bus or other heavy vehicles plying on the roads of
Delhi, there the richer section of the society meets with fatal
accidents as a result of rash and neglectful driving. Statistics showed
blue line buses were challaned for defiance of rules of lane driving,
wrong overtaking, without speed governance and sudden stopping in
the middle of the road and at places where there is no bus stand.
Numerous blue line vehicles were impounded for violations. These
statistics only show a drop in the ocean in traffic offences and
accidents involving two-wheelers, cyclists, light motor vehicles and
other heavy motor vehicles. This pathetic state of affairs and
continuously growing danger to human lives on roads of Delhi has
been a matter of judicial concern for a number of years now.
92. Regardless of such specific orders of the Court over the years,
there has been lack of will in implementation of such directions.
Despite the fact that roads of Delhi are being made better, it has not
helped to considerably check or reduce the traffic offences. The
control of traffic in NCR and NCT, Delhi, is a matter of paramount
public safety and, therefore, is evidently within the ambit of Article
21 of the Constitution.
93. The concern of the Courts for loss of human life, governmental
property has been reflected in its various judgments. Whatever be
the reason and excuse but fact of the matter is that the multi-
dimensional progress is not being aligned by the progressive checks
and balances in regard to adherence to traffic regulations and
maintenance of proper vehicular discipline.
94. Jumping of red lights, overtaking from the wrong side, driving
the vehicles at high/excessive speed, wrong-lane driving, smoking
while driving(although it is depicted in every buses NO SMOKING but
drivers & conductors are the one who smokes at the first instance),
blowing of pressure/musical horns, creating undesirable sounds,
sudden stopping and parking of buses on the main roads even if the
bus-bay was available, racing between buses of the DTC and private
operators and inter se private bus operators for making more
money, driving of two-wheelers without helmets, driving of two-
wheelers like snake i.e. overtaking from right, then left and again
right that too at a high speed, using of sirens and using of black films
which completely stop or substantially obstruct visibility inside the
cars, are a few amongst many of the commonly committed traffic
offences. These offences not only endanger the life of the common
man driving or walking on the roads but also are the source of major
heinous crimes, particularly against women and children. It is the
obligation of the State to control and prevent commission of traffic
offences primarily to make the traffic of Delhi better organized and
to prevent fatal or other accidents which adversely affect the Society
at large.
95. Disturbed by such a scenario, Mr. Kailash Vasudev, learned
Amicus Curiae made a passionate plea to this Court to address these
concerns as well. We may emphasize that one major cause for this
imbroglio is the absence of a planned transport system keeping in
mind the future requirements.
96. The courts while taking judicial notice of road accidents by
Blueline Buses which were affecting all sections of society and while
monitoring the same have issued writs for implementing a safe
transport system and extending adequate protection to citizens. He
suggested for setting up of a permanent planning cell and during the
course of the hearing attention of this Court was invited to para 14 of
which reads as under:-
"As per present advice, within the National Capital
Region there is no cohesive central planning unit to
work in tandem with various Corporations for
streamlining traffic or for regulating the
constructions on roads, which would lead to
chaotic times on the road. Noticing the fact that
the Govt. of NCT of Delhi is unable to provide
adequate transport connectivity, the Delhi Metro
Rail Corporation (DMRC) has commenced its own
bus system. 119 buses have been inducted into
the Metro Feeder Services through open tenders.
These buses will be run under very stringent
operating conditions. The Metro Link Service has
been formulated in cooperation with the
Government of NCT Delhi and the State Transport
Authority."
97. At the hearing, the learned Senior Counsel for the NCT made a
statement that planning of these facilities and other engineering
factors in the NCT of Delhi were in the jurisdiction of the Unified
Traffic and Transportation Infrastructure (Planning and Engineering)
Centre (briefly UTTIPEC). However, reaction of Mr. Vasudeva was that
as per its website (www.uttipec.nic.in) the UTTIPEC was set up on 31st
July 2008 under regulations framed under Section 57 of the Delhi
Development Act, 1957. The constitution, aims and objectives of the
UTTIPEC have been set out in the said notification. He submitted that
the issue of the required bus fleet has not been taken up by the
UTTIPEC. The projects hitherto approved by the UTTIPEC have been
put on its website and do not advert to any such issue.
98. Specific reference is invited in this behalf to areas e.g. Dwarka,
G.T.Karnal Road, Delhi Gurgaon Road, Vikaspuri, Mayur Vihar and the
like, where the road lengths and density of population have increased
substantially and commercial establishments like BPOs and other
service providers who work long shifts have been established. This
will reduce the number of BPO vehicles being used and provide safe
transport to lady employees and senior citizens.
99. He further argued that the Government has not given any
specific cogent data or information on the future requirements of
buses in the NCT. In the affidavit filed on 25th January 2011 (after
concluding of the hearing) reference has been made to the
recommendation of the Transport Department based on the
recommendations made by the group so appointed which states:
"INITIATIVES UNDERTAKEN IN TRANSPORT
SECTOR
1. Augmentation of city bus fleet and Reforms
in private sector bus operations.
.................................
The Government of NCT of Delhi has decided to
phase out the existing private stage carriage
(blueline) buses run by the individual operators
and to replace them with new buses to be
operated through corporate entities. Further, as
per the directions of the Hon‟ble Delhi High Court,
the stage carriage fleet is to be augmented to
11,000. The DTC has already augmented its fleet
to 6300 buses. Details regarding the reforms in
private sector have already been submitted to the
Hon‟ble Court from time to time."
100. In this set of recommendations furnished by the NCT of Delhi
no plans for the future deployment of buses have been addressed.
He, thus, urged that it is necessary for the Government to give
specific and detailed information about the body nominated for the
purposes of planning transport amenities in the NCT. The UTTIPEC
does not appear to have taken this aspect. Its website does not
include this as an agenda.
101. Absence of city buses in large number of colonies and areas are
a cause of concern and often lead to unsafe conditions for the
citizenry. This is moreso as even after the vehicles in the Clusters of
Routes come into operation the need for a planned transport system
will remain and so will the requirement of public transport. It is
admitted that to provide transport to the travelling public, even the
DMRC has sought to create its own Metro Links Services on Feeder
Routes to Metro Stations. The authorities must address this need in
the changing transport systems, road lengths, change in population
demagogy and urban development which have been adverted to in
detail in the Economic Surveys for Delhi starting 1999-2000 and
onward.
102. The learned Amicus Curiae also submitted that in order to have
a complete and effective control and regulation of the traffic in Delhi
and to eliminate/reduce untoward accidents, it was necessary to take
other measures as well. To bring his point home, he referred to
Chapter Eight in the book titled "Traffic, Why We Drive The Way
We Do (And What It Says About Us)" authored by Tom
Vanderbilt. This book describes the traffic situation in the important
cities of the world. Chapter Eight is devoted to Delhi Traffic which is
captioned "How Traffic Explains the World: On Driving With a Local
Accent". The catch line of this Chapter is:
"Good Brakes, Good Horn, Good Luck"
Plunging into the Maelstorm of Delhi Traffic.
103. In a most interesting manner, with an extraordinary neck for
looking at everyday life, the writer has explained the traffic situation
in this city. Some of the extracts from this narrative would explain
the situation on Delhi roads:-
"By day, the mayhem is revealed as true chaos.
Delhi‟s streets play host to a bewildering stream of
zigzagging green-and-yellow auto-rickshaws, speeding
cabs, weaving bicyclists, slow-moving oxen-drawn
carts, multi-passengered motorcycles conveying
helmetless children and sari-clad women who struggle
to keep their clothing from getting tangled in the chain,
and heaving buses, which are often forced out of the
bus-only lane because it is filled with cyclists and
pedestrians, who are themselves in the lane because
there tends to be no sidewalk, or "footpath", as they
say in Delhi.
xxx
In the roundabouts of New Delhi, the traffic whizzes
and weaves defiantly past faded safety sings bearing
blunt messages like OBEY TRAFFIC RULES, AVOID
BLOOD POOL AND DON‟T DREAM OTHERWISE YOU‟LL
SCREAM. These signs are as morbidly whimsical as
they are common, leading one to suspect that
somewhere, lurking in Delhi‟s Public Works
Department, is a desk-bound bureaucrat with the soul
of a poet.
xxx
I heard that particularly Indian phrase-"rash and
negligent driving"-often while in Delhi, but after a few
days I started to lose sight of how that could differ from
the norm. Delhi drivers have a chronic tendency
to stray between lanes, most alarmingly those
flowing in the opposite direction. The only signal
used with regularity is the horn. Instead of
working brake lights (or indeed any lights), many
trucks have the phrase KEEP DISTANCE painted on the
back, a subtle reminder to the driver behind: I may
stop at any moment. Some taxis, on the other hand,
bear the inscription KEEP DISTRNACE. POWER BRAKE.
This means: I may come to a stop faster than you
expect.
xxx
After spending some time in the city, one vacillates
between thinking Delhi drivers (and pedestrians) are
either the best or worst in the world - the best because
they‟re so adept at maneuvering in tight spaces and
tricky situations, or the worst because they put
themselves there to begin with. "That is why we have
a negative connotation to the phrase „defensive
driving is defending yourself from all the
vagaries, including the negligence contribution
on the part of the other road user".
xxx
In one clip, a driver is rear-ended when he stops his car
suddenly in the middle of a busy road. Why did he
stop? So he could buckle his seat belt and not be
challaned, or fined, by a traffic cop posted on the side
of the road. In another, a bus illegally halts far from
the marked curbside bus stop, making harried
passengers weave through several traffic streams
simply to board the bus. It soon become clear that one
reason the number of violations is so high is that many
drivers are forced to violate the rules in reaction to
another driver violating the rules: The bus lane is filled
with pedestrians or bicycles (who, in fairness, have
nowhere else to go), so the bus cannot travel in the bus
lane; thus begins a cascade of violations across the
traffic stream.
Corruption begins at street level. The traffic cop is its
foot soldier, the agent of bad traffic. He pulls over
motorists for phantom violations, reducing not only
traffic flow but the incentive for any driver to follow the
law. Some argue that corrupt cops increase the
incentive to follow the law because these cops are that
much more on the lookout for excuses to issue a fine,
but this presumes they are actually pulling people over
for legitimate reasons. As one of the average person‟s
primary interfaces with the legal system, the traffic cop
becomes a symbol of the legitimacy of the regime.
And what about the traffic he‟s directing? Corruption
casts its shadow there as well.
To return to the frenetic streets of Delhi :
My impression was that many drivers did not
seem to be particularly qualified for a license.
There‟s a good reason for this. A study conducted by a
team of researchers for the U.S. National Bureau of
Economic Research looked at the process of getting a
driver‟s license in Delhi. The group tracked 822
individuals in three groups: a "bonus" group, whose
members would get a financial reward if they could
obtain a license in the fastest time legally possible; a
"lesson" group, whose members were given free
driving lessons before they attempted to get the
license; and a "comparison" group, which was given no
special instructions.
The researchers found that those who
wanted the license soonest-that is, the members
of the bonus group-got it more often, and faster,
than people in the other groups. The reason, it
turned out, was that like many drivers in Delhi,
they used an "agent" to speed the process. But
when the researchers later gave all the survey
participants a driving test, 69 percent of the bonus
group failed, compared to just 11 percent of the drivers
who had taken lessons. But learning to drive properly
clearly did not pay off. The people who had the best
driving skills were 29 per cent less likely to get a
license than the people with the worst driving skills.
Corruption did indeed grease the wheels, but at the
expense of the quality of those behind the wheel.
"Corruption", the authors wrote, "appears to substitute
for actual driving skill."
This study provides a hint about how the norms
discussed in the previous sections evolve and flourish.
The scores of new drivers who land on Delhi streets
each month learn the norms of a system made up of
the collective experience of all the previous drivers
who bribed their way through the Regional Transport
Office. No small wonder this traffic system isn‟t market
by scrupulous attention to formal rules. In the writer
Pawan Varma‟s description of what motivates
corruption in India, it is not hard to see a metaphor for
the country‟s traffic behavior: "In a cut-throat world, to
finesse an obstacle. The premium is on pragmatism
and agility, the capacity to seize an opportunity when it
comes, and to profit when possible. What matters is
not fixity of principle but clarity of purpose."
xxx
The vexing, intertwined nature of this dilemma is
reflected in a piece of Hindi slang I learned while
in Delhi "jugad". The word has a shifting palette of
meanings, mostly arrayed around the central idea of
"creative improvisation": It can refer, on the one hand,
to the jury-rigged vehicles one finds in India, especially
in rural areas. Lacking money for a car, say, a farmer
will craft a functioning vehicle out of an old motorcycle,
a car axle, and a diesel engine. That this jugad vehicle
might not be safe, at least when it‟s sharing the road
with newer cars, is one of the clear kinds of traffic risks
that come with lack of money.
But jugad is also used as a kind of surrogate
for "bribe"; here it refers to doing whatever
needs to be done to get something
accomplished. The case of the Delhi drivers who
acquired licenses quickly is a form of judged in
practice. Would-be drivers know that corrupt
bureaucrats respond more to money than driving skills.
Is this kind of corruption, which has a ripple effect that
translates into the myriad traffic violations that occur in
Delhi every day- and studies suggest that the more
traffic laws are violated, the more casualties there will
be - purely an effect of lack of resources? Or is it, as
many would argue, precisely the sort of thing that
holds up the development of a country? If GDP and
traffic fatalities are somewhat related, and GDP and
corruption are somewhat related, and traffic fatalities
and corruption seem to be the most clearly related,
then fighting corruption may be the best way to lower
traffic fatalities and rise GDP."
104. Mr. Vasudev, is right in his submission that erasing of blue line
buses from the scene would not curb the menace. The suggestions
given by learned Amicus Curiae and noted above, need due attention
at the hands of executive, framers of the policy.
105. In addition, we are of the view that following guidelines
be also kept in mind:-
I. Under the Rules, a Driver has to be a trained person
and is expected to pass the test held by the
competent authority. However, the Rules and the Act
are silent with regard to educational qualification of
the Drivers. In the present days, one cannot lose site
of the fact that the Drivers are expected to deal with
the public, which consists of well-to-do persons, poorer
sections of society, elderly persons, young boys and
ladies. Their behaviour towards the public is a matter
of concern. Lack of basic qualifications can lead to
unexpected behaviour and in some cases even
undesirable behaviour. Besides the fact that a Driver
essentially must satisfy with technical qualifications
and fulfilment of test, it is necessary that they should
have minimum basic education as well.
II. Drivers of all the buses including the Drivers employed
by various Government Departments, who are driving
cars or buses of various authorities, should undergo
training courses and/or refresher courses. Delhi Traffic
Police has created one Road Safety cell, which focuses
on the education of the road users-particularly the
commercial group. Different training schemes have
been prepared for training of the drivers. In addition to
the institute of DTC, there are three institutes in Delhi
i.e. at Sarai Kale Khan, Loni and at Burari, which
impart training to the drivers. All these institutes
should hold regular training and/or refresher courses,
which should will be attended to by all drivers
employed by various Government organisations, Govt.
of NCT of Delhi and its various departments and all the
drivers, who are driving the buses under the permits
of the State Transport Authority.
III. The drivers should be kept on probation for a specified
period and his mannerism and driving should be
closely watched by the Supervisory staff of
DTC/STA/concerned officers and record should be
maintained as to how many traffic offences, he
commits during that period. This all should be made
the basis for extension of probation and/or
confirmation, as the case may be. But if his case is
found to be totally unsatisfactory and he is found to be
an offending driver, the competent authority should
take a definite action in this regard.
IV. It should be ensured that not more than 2 or 3 buses
should reach at a bus stand at one point of time. This
time table should be circulated for information of all
concerned including the traffic police and other
enforcing agencies and should be adhered to strictly.
Those, who are found indulging in violation of this
condition, should be dealt with in accordance with law
including challaning such vehicles for disobedience of
this condition.
V. The State Transport Corporation should ensure that
the private bus operators should carry the photograph
of the person to whom the license has been granted.
This direction is necessary for the reason that it was
argued before the Court that the licenses are being
sold and the buses are being operated by the persons
other than the persons, who were awarded the license
as the licenses are being sold by indirect process after
taking huge money. It will be obligatory upon every
driver to carry the permission of the State Transport
Authority, which would have the photograph of the
person to whom the license for the route has been
granted.
VI. Constables posted on the roads are not really
performing their duties in a disciplined manner. It is
expected of the higher and supervisory staff of the
police including the traffic police to deploy the staff in
a manner so to achieve the object of proper control of
traffic and prevention of traffic offences as they did
during the CWG.
VII. Working hours of the drivers be fixed and authorities
should not permit the drivers to drive beyond the
prescribed hours, particularly in the buses running in
Delhi. This should be seriously taken into consideration
because there are many instances where drivers are
"flying" buses more than 18 hrs per day.
VIII. The Delhi Transport Corporation should continue to
make proper bus stands with proper bus-bays
wherever it is possible. The bus stands so made shall
be disabled-friendly and no encroachers be permitted
on these bus stands i.e. no person be permitted to
occupy any space of the bus stand or
immediately adjacent to the bus stands for
keeping a water trolley or other raidees etc.
Delhi police should remove all other persons
who are illegally engaged into the roadside
commercial activities, so that groups do not
gather on a busy road.
Shows Desktop.lnk
IX. The STA should ensure that the buses running under
its permit do not have any person other than a
conductor and a driver in a bus and this shall also be a
condition of the permit. It should also ensure that no
person including the conductor shall be on the stairs of
a bus or hang outside the door of a bus. It is also for
the authorities to ensure that overloaded buses are
not permitted to ply on the roads of Delhi. Further the
private bus operators, even in cluster scheme, should
not be permitted to employ/depute young boys or any
other person, who, as commonly noticed and even
argued vehemently before us, beat the sides of the
buses with their hands and keep on whistling, which
generates annoying loud noise and distract other
drivers. The traffic police and the STA is expected to
take appropriate action against the defaulting bus
operators/persons in accordance with law. Default in
adherence to this condition shall also be treated as
violation of provisions of Section 179 of the Act.
106. We know that this is an arduous task and needs assiduous
efforts. That is what is expected of any Government which believes
in good governance to achieve. We hope that concomitant with the
induction of buses through Cluster Scheme, all the aforesaid
suggestions including those given by the learned Amicus Curiae
would be kept in mind and positive action taken thereupon.
107. It is a time to part with this order. However, we deem it our
duty to acknowledge the valuable contribution of Mr. Kailash
Vasudeva, learned Sr. Advocate who was appointed as Amicus
Curiae and Mr. A.J. Bhambhani, Advocate who ably assisted him. The
efforts made by these counsels have been of great help to this Court
and are to be commended. Mr. Vasudeva and Mr. Bhambhani have
truly played the role which is expected of Amicus Curiae (friends of
the Court) and we place on record our deep appreciation for their
contribution.
(A.K. SIKRI)
JUDGE
(SURESH KAIT)
JUDGE
MARCH 3, 2011skb
