Manushi Sangathan, Delhi vs Govt. Of Delhi And Ors.
2012 Latest Caselaw 7025 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI

                 CM No. 18051 of 2012 in W.P. (C) 4572 of 2007

        MANUSHI SANGATHAN, DELHI                                ..... Petitioner

                        Versus

        GOVT OF DELHI AND ORS.                               .....Respondents

        Appearance: Ms. Indira Unninayar with Mr. Narayan Krishan,
        Advocates for Petitioners in WP (C) 4572 of 2007.
        Mr. Najmi Waziri, Standing Counsel with Mr. Rajiv Nanda,
        Addl. Standing Counsel, for GNCTD & Delhi Police.
        Ms. Madhu Tewatia, Advocate for MCD/Applicant in CM 18051 of
        2012 with Ms. Sidhi Arora, Advocate.


        CORAM:
        HON'BLE MR. JUSTICE S. RAVINDRA BHAT
        HON'BLE DR. JUSTICE S. MURALIDHAR


                                 JUDGMENT

07.12.2012

CM No. 18051 of 2012 (for modification of order dated 2nd June 2012 filed on behalf of the Respondent/MCD)

Background

1. This is an application filed by Municipal Corporation of Delhi ('MCD') seeking modification of the directions contained in paras 8 and 9 of the order passed by this Court on 2nd June 2012.

2. The background to this application is that in the judgment dated 10th

February 2010 of the Full Bench of this Court in Manushi Sangathan, Delhi v. Government of Delhi 168 (2010) DLT 168 (hereinafter 'the Full Bench judgment') this Court had inter alia held that under owner-plier policy and Bye-law 3(1) of the Delhi Municipal Corporation Cycle Rickshaw Bye-laws 1960 ('Cycle Rickshaw Bye-laws') were arbitrary and void, and accordingly quashed them. Further, Clauses 4(k) and (l) of the MCD's policy of 2007 and also Bye-laws 17(b) and 17-A of the Cycle Rickshaw Bye-laws to the extent they permitted confiscation and scrapping of cycle rickshaws and mandated a continuing offence, prescribing specific sanctions, were held to be without authority of law and contrary to the Delhi Municipal Corporation Act 1957 ('DMC Act').

3. Detailed directions were issued by the Full Bench to constitute a special task force to inter alia explore all the questions pertaining to road traffic in Delhi, for "ensuring equitable access to all classes of vehicles that ply on the roads including non-motorized transport such as bicycles and cycle rickshaws." The task force was asked to "review all aspects pertaining to traffic flow, registration of vehicles, restrictions in respect of vehicular movement (of all classes of vehicles- heavy, light, private, non-motorized) which would include review and consideration of all existing policies, and regulatory measures and make such recommendations, as would promote the objectives of ensuring equitable access to all kinds of vehicles, minimizing harmful impact on the environment, smoothening the flow of traffic, and at the same time accommodate the concerns of all interests". By way of a continuing mandamus the Full Bench directed listing of the petitions for monitoring the progress of implementation of its directions periodically.

4. Thereafter, during the hearing of these petitions the minutes of the meetings of the task force were placed for consideration. In the meanwhile, in S.L.P. (Civil) No. 19960 of 2010 filed by MCD against the Full Bench judgment, an order was passed by the Supreme Court on 8th November 2011 noting that it had already rejected MCD's prayer for interim relief and requesting "the High Court to continue to effectively monitor the implementation of the directions contained in the impugned order." It must also be noted that the Supreme Court ultimately dismissed MCD's said SLP on 2nd April 2012.

5. Pursuant to the directions issued by the Court, Government of National Capital Territory of Delhi ('GNCTD') commenced a pilot project on the Dr. Shyama Prasad Mukherji Marg ('SPM Marg'). Presentations were made before the Court by the Unified Traffic and Transportation Infrastructure (Planning and Engineering) Centre ('UTTIPEC'), an agency of Delhi Development Authority ('DDA'), on the basis of its Street Design Guidelines.

6. On 23rd December 2011, after reviewing the progress of the steps taken for executing the pilot project on SPM Marg, this Court noted that a separate lane had been earmarked for the passage of non-motorized vehicles ('NMVs') and issued directions for deployment of Marshals by MCD in coordination with the Delhi Traffic Police. In its order dated 23rd December 2011, this Court directed inter alia as under:

"(iv) The MCD shall submit a comprehensive 'without prejudice' plan for registration and licensing of all existing

cycle rickshaws in Delhi. The Court was informed that there are approximately more than 600,000 cycle rickshaws plying within the city of Delhi. No fresh licence has been issued after 2007. The plan shall include all the material elements such as the zones where the licensing officials can be posted, the appropriate license/registration fee to be collected, and time within which the plan can be implemented. Counsel for the Petitioner agree that this would assist in ascertaining the number of cycle rickshaws plying and locating them zone- wise."

7. On the next date, 13th January 2012, this Court after hearing learned counsel for the Petitioner as well as MCD issued inter alia the following directions regarding registration and licensing of cycle rickshaws:

"The status report of the MCD reveals that by a Circular dated 2.1.2012, a scheme for the registration/licenses of the cycle rickshaws throughout the city of Delhi has been made operational. The main judgment dated 10.02.2010 of this Court has held the owner-plier policy as well as the ceiling on registration and licensing of the cycle rickshaws are violative of the DMC Act as well as provisions of the Constitution.

It would, therefore, be more appropriate that the MCD spells out in clearer terms the criteria for registration of cycle rickshaws. We are informed that the MCD, the GNCTD and other authorities have proposed a draft legislation for the registration of cycle rickshaw. Since MCD has agreed to it in principle, we commend it for implementation as an interim measure till a final decision is taken in consultation with all the concerned parties or a suitable legislative framework is brought in place. It is clarified that this Court did not intend to use the terms 'registration' and 'licensing' interchangeably. While registration would pertain to the vehicle i.e. cycle rickshaw, license would be issued to the cycle rickshaw

puller. The MCD will bear this in mind while spelling out the policy and criteria for registration and licensing. This be done in consultation with the authorities concerned. The petitioners will be free to offer their suggestions in this regard to the MCD which will take them into account while formulating the policy and criteria for registration and licensing."

8. At the hearing on 2nd March 2012 the following order was passed in relation to the circular that had been issued by MCD on 14th February 2011 regarding registration and licensing of cycle rickshaws:

"During the course of hearing, it was suggested by counsel for the parties that a joint inspection of the site would be carried out to identify any further obstructions or bottlenecks in the smooth operation of the pilot project.

We are informed that MCD intends to issue license-cum- registration forms, for the purpose of registration and licensing of cycle rickshaws. The petitioners have expressed serious reservation on this score and contended that some of the information sought is irrelevant and objectionable. It is also contended that the policy of registration and annual licensing is contrary to the judgment of the Full Bench.

Having considered the Circular dated 14.2.2011, we are of the opinion that the MCD should not proceed with its proposal till the next date of hearing.

List on 23rd March, 2012."

The June 2nd Order

9. The GNCTD convened meetings of the concerned agencies in which the

Delhi Traffic Police, UTTIPEC, MCD and other authorities participated. On 2nd June 2012, this Court passed a detailed order on the issue of registration and licensing of cycle rickshaw pliers. Paras 8 and 9 of the said order read as under:

"Registration of cycle rickshaws

8. After hearing all the parties, the Court is of the opinion that the MCD should with utmost expedition start registering cycle rickshaws plying in the city. For this purpose, the form proposed by the MCD on the record (at page 1184 of the paperbook shall be utilized with certain modifications, suggested hereafter. The form which will be titled "Application for Registration of NMV" will be made available free of charge and also placed on the internet so that it can be downloaded and printed. Also, sufficient number of copies shall be made available by the MCD at its Citizen Service Bureau (CSB) counters registration counters. The MCD should make adequate arrangements for the digital photographs and the recording of index fingerprint of the applicants as is done in the case of applicants for MV licences. Proof of residence should not be insisted upon, having regard to the economic strata of the applicants and also the fact that most of them may not possess any proof of residence. The MCD shall also not insist upon the proof of purchase of cycle rickshaw, having regard to the fact that in many cases, these are assembled and receipts would be hard to come by. Insistence on document is irrelevant. Ms. Tewatia, learned counsel for the MCD has assured that the registration certificate in respect of the cycle rickshaw would be issued within two days of the duly filled form being submitted.

Licence for cycle rickshaw pliers

9. So far as the application by the cycle rickshaw plier for licence, the form suggested by the MCD at page 1182 of the pleadings shall form the basis. However, as in the

case of the application for registration of NMVs, furnishing of proof of residence shall not be insisted upon and the form shall be provided free of charge. Information regarding experience of driving a cycle rickshaw, knowledge of the traffic rules and about any disease that the applicant is suffering from are irrelevant and should not be insisted upon. Here too, the MCD assures the Court that license would be issued within two days of the application being launched. As far as the insistence by the MCD of the disclosure as to whether an applicant has been convicted for any offence is concerned, the Court notices that this is based on a previous understanding of the Bye-laws which were framed in 1960. The Court is of the opinion that there is some inherent bias against those who apply for cycle rickshaw registration or licence. The information that is sought from those who apply for MV licences in terms of Rule 14 of the Motor Vehicles Rules is about previous conviction under the Motor Vehicles Act 1988 but not generally about all convictions. In these circumstances, calling for these particulars from an applicant for a cycle rickshaw licence is not relevant and should not be insisted upon."

10. Further, as regards the redrawing of the forms for the said purpose, this Court directed in para 13 as under:

"Redrawing of the forms

13. The form of the application for registration of NMVs as well as the form for application for licence shall be redrawn on the above basis and placed before the court by the MCD on the next date. The inputs provided and the forms suggested by the Petitioner may also be taken into consideration by the MCD for this purpose. The forms will indicate what the fees to be collected for registration, licence and parking. They will contain instructions to the applicants to facilitate quick

processing of the applications. The forms will be rolled out after approval by the Court."

11. Thereafter, there were hearings of the petitions on 13th July, 27th July and 13th August 2012. On 28th September 2012, the following directions were issued as regards registration and licensing of NMVs:

"Registration and Licensing of NMV's Further to the order dated 2.6.2012, and the subsequent orders, this Court has been shown by learned counsel for the MCD two forms - one for the registration of the rickshaws and the other for issuance of licence to the NMV plier/owner.

This Court is of the view that MCD should commence the process of registration and issuance of licences as early as possible preferably from 1.11.2012. While, finalizing the forms shown by it to the Court today, the MCD will consider the suggestions given by the petitioners at pages 1600-1605 of the paper book (as part of the written submissions) and in particular, those concerning the instructions to be printed on the reverse of the forms. These instructions will also be prominently publicized for the benefit of the proposed applicants. It is clarified that the basic instructions should be in place when the process of registration begins."

12. There were hearings held on 12th and 18th October 2012. The present application was filed by MCD on 10th October 2012 praying that paras 8 and 9 of the order dated 2nd June 2012 (extracted hereinabove) should be modified.

The two issues in this application

13. There are two issues raised in this application. One is that the requirement of production of ID proof/residence proof by cycle rickshaw pliers for the purposes of registration or licensing should not be dispensed with keeping in view the security concerns and the possibility of an 'untoward incident'. The second is that there are separate Bye-laws made by the MCD in 1960 for thelas (hereinafter the 'Thela Bye Laws') which are in force and which were not the subject matter of challenge before the Full Bench. Under Bye-law 4 of the Thela Bye-laws, the requirement of a thela licence is mandatory. The said licence is issued annually and is valid for a period of one year. MCD submits that inasmuch as the forms now proposed stipulate the period of validity of thela licences and registration certificates as three years and five years respectively, they are in contravention of Bye- laws 4 and 8 of the Thela Bye-Laws.

14. In the reply filed by Manushi Sangathan it is pointed out that demand of residence proof from rickshaw pliers for the purpose of issuance of a rickshaw puller licence is not feasible as rickshaw pliers are predominantly migrant labour who do not have the resources to either buy a rickshaw or rent an accommodation. It is pointed out that they invariably sleep on the roadside or in their rickshaws or in cheap low-rental accommodation in the jhuggi clusters. It is difficult for them to obtain an address proof. Further, the authorities can easily contact the owner of the rickshaw for the whereabouts of the plier. As regards the Thela Bye-laws it is submitted that the definition of 'rickshaw' in the draft Delhi Non-Motorized Vehicles Bill, 2011 includes passenger rickshaw pulled by a cycle with three pneumatic

cycle wheels propelled with a chain and pedal, trolley rickshaw, hand pulled thelas or cycle-pulled mobile carts used for public transport or goods carriage. Under the Cycle Rickshaw Bye Laws, a cycle rickshaw is expected to carry luggage up to 125 kgs. The stand of the Petitioners is that since a thela is simply defined as a vehicle for the conveyance of goods pulled or propelled by one or more men, the order dated 2nd June 2012 does not require to be modified or clarified.

Requirement of residence proof

15. The first issue raised in this application concerns the requirement of a rickshaw puller having to furnish proof of residence. This is purportedly based on security concerns and the possibility of an 'untoward' incident. The Full Bench judgment recognized the right to livelihood of rickshaw pullers. The use of some of the provisions of the Cycle Rickshaw Bye-laws as an instrument of harassment of the rickshaw pullers was adversely commented upon. The Full Bench acknowledged that rickshaw pullers belong to economically weaker sections of the society and have to invariably bear the brunt of police excesses as they constitute 'soft' targets. Rickshaw pullers by themselves can hardly constitute a security risk. The Full Bench observed that the power to impound cycle rickshaws and levy heavy penalties did not include the power to seize, confiscate and destroy cycle rickshaw. The Full Bench noted: "we are not unmindful or the manner in which these wide powers were being exercised with cycle rickshaws being easy targets for unleashing the lathi of a traffic policeman. It is hoped that the Delhi Police will, consistent with this judgment, instruct its personnel to treat rickshaw pullers with sensitivity."

16. At the same time, as noted in the Full Bench judgment, rickshaws are indispensable for providing link transport for the innumerable users of the public transportation system. Given the unprecedented growth of residential colonies, a large middle class population which commutes by buses, trains and the metro, is dependent on cycle rickshaws for the further journey to reach their homes and places of work from the bus, train and metro stations. In recognition of this fact, the Master Plan for Delhi 2021 mandates pervasive use of non-motorised transport including cycle rickshaws.

17. The directions issued by the Full Bench in the above context were aimed at making it easy for rickshaw pullers to ply their vehicles and carry on their livelihood without fear of police harassment. It is in same vein that this Court required MCD to place before it a comprehensive registration and licensing policy. Forms were asked to be designed to facilitate easy registration of rickshaws and licensing of the rickshaw pullers.

18. The insistence by the MCD on a rickshaw puller having to furnish proof of residence cannot be justified if it is not proportionate to the need to ensure 'security' and 'safety' of the populace which includes the rickshaw pullers themselves. The said requirement would be unreasonable if it rendered illusory the protection and enforcement of the right to livelihood of rickshaw pullers.

19. At the hearing on 2nd June 2012 there was discussion in Court about the requirement of proof of residence. The fact that many rickshaw pullers are migrants from other states and are unlikely to have any proof of their

residence in Delhi was taken note of. Rickshaw pullers invariably would, if at all, have a permanent residence outside Delhi. It is not unlikely that rickshaw pullers are homeless, having to either sleep on the rickshaw itself or use the city's pavements for a night's rest. The more fortunate ones may be able to find some space in a jhuggi cluster on a temporary basis. In the circumstances, the insistence on proof of residence from rickshaw pliers as a condition for the grant of registration or licence would undoubtedly cause them further harassment and create a barrier for them to obtain either.

20. Also, the rationale for the requirement of proof of residence as a security measure is that the rickshaw puller should be easily located and the details of his residence verifiable. The proposed forms require the furnishing by the rickshaw puller of both his temporary as well as permanent address. Rickshaw pullers literally and figuratively live their lives in the 'open'. It is not difficult for the police, if it makes a concerted effort, to trace any rickshaw puller. The owner of the rickshaw can easily provide the current whereabouts of the rickshaw puller.

21. For the foregoing reasons this Court rejects the prayer of the MCD that paras 8 and 9 of the order dated 2nd June 2012 should be modified insofar as they dispense with the requirement of applicants for registration of cycle rickshaws and for licensees having to furnish proof of residence.

Thela Bye-laws

22. The MCD is, however, correct in its submission that there is a separate set of Bye-laws for thelas. The Thela Bye-laws were not brought to the

notice of the Full Bench or even to this Court till the present application was filed by MCD. Why the MCD did not do so earlier is not clear.

23. The Cycle-Rickshaw Bye-laws defines a cycle-rickshaw as "a rickshaw attached to a cycle with three pneumatic cycle wheels which is propelled with a chain and pedal in the manner of a bicycle". Bye-law 4 sets out the dimensions of the cycle-rickshaw. Bye-law 9 prescribes the "maximum number of persons and weight to be carried in cycle rickshaw". A cycle- rickshaw is permitted to carry a load of 3½ maunds i.e. up to 125 kgs, even when there is no passenger.

24. On the other hand, the definition of a thela under the Thela Bye-laws is "a vehicle for the conveyance of goods pulled or propelled by one or more men." The condition for grant of licence is specified in Bye-law 4 and the conditions of licence in Bye-law 8. The maximum load that can be carried in a thela is 466 kgs. The Thela Bye-laws do, therefore, prescribe a separate regime for registration and licensing of thelas. While the broad categorization of an NMV would include thelas, the Court has, in these proceedings been concerned with the registration and licensing of cycle rickshaws as defined under the Cycle-Rickshaw Bye-laws.

25. Consequently, this Court modifies its order dated 2nd June 2012 and clarifies that the forms for registration and licensing, as prescribed by MCD, in terms of the said order would apply to registration and licensing only of cycle-rickshaws as defined by the Cycle-Rickshaw Bye-laws.

26. CM No.18051 of 2012 is disposed of in the above terms.

S. MURALIDHAR, J.

S. RAVINDRA BHAT, J.

DECEMBER 7, 2012 AK