Initiative For Transportation ... vs Mcd And Ors.
2012 Latest Caselaw 3729 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                          Date of decision: 02.06.2012

+      W.P. (C) 4572/2007
       MANUSHI SANGATHAN, DELHI                                    ..... Petitioner

               versus

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

W.P. (C) 8580/2009 INITIATIVE FOR TRANSPORTATION AND DEVELOPMENT PROGRAMMES .....Petitioner

versus

MCD AND ORS. .....Respondents

CONT. CASE (C) 564/2010 MANUSHI SANGATHAN ..... Petitioner

versus

P.K. PANDA AND ORS.

.....Respondents

Appearance: Ms. Indira Unninayar with Ms. Kirat Randhawa, Advocate for petitioners in WP (C) 4572/07 and Cont. Case (C) 564/2010.

Mr. Nazmi Waziri, Standing Counsel for GNCTD with Ms. Neha Kapoor, Advocate.

Ms. Madhu Tewatia, Advocate for MCD with Ms. Sidhi Arora, Advocate.

Ms. Geetanjali Mohan, Advocate for Railways with Ms. Mansi Gautam, Advocate.

W.P. (C)4572/07, W.P.(C)8580/09 & CONT. CASE (C) 564/10 Page 1 Mr. Sanjeev Ralli with Mr. Sandeep Anand, Advocates for respondents/Chandni Chowk Vyapar Mandal.

Ms. Pooja Bahuguna, for Ms. Sangeeta Chandra, Standing Counsel for DDA.

Ms. Reeta Kaul and Sh. Sandeep Khatri, Advocates, for Resp. Nos. 4 and 5 in W.P. (C) 4572/2007.

Mr. Shashi Bhushan, President, All Delhi Cycle Rickshaw Operator Union.

CORAM:

MR. JUSTICE S. RAVINDRA BHAT DR. JUSTICE S. MURALIDHAR

MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT) %

C.M. APPL. 626/2012, 2724/2012, 2801/2012, 3663/2012 and 793/2012

Left Slip Road

1. At a special sitting today, the Court was shown several presentations. One of these included a presentation by M/s. Pradeep Sachdeva and Associates, the Architects commissioned by the MCD. This presentation was about the road segregation on the S.P. Mukherjee Marg for the purpose of pilot project for implementation of the directions contained in this Court‟s judgment dated 10.02.2010. The Court is informed that this presentation was also made before the UTTIPEC which has approved it in principle. According to the proposal, the free-left slip road turning on to the S.P. Mukherjee Marg would no longer exist. Instead a separate lane has been created in the main carriageway to cater to the left-turning motorized vehicle (MV) traffic. The proposal also envisions a multi-utility zone (MUZ) which is to act as a buffer between non-motorized vehicle (NMV, a term which

W.P. (C)4572/07, W.P.(C)8580/09 & CONT. CASE (C) 564/10 Page 2 refers to cycle rickshaws, trolleys, thelas, etc. also variously called "cycle rickshaws") (NMV) lane and the main carriageway for motorized vehicles. The MUZ would be used for parking of rickshaws, emergency vehicles, PCRs and also for the purpose of hawking.

2. Mr. Nazmi Waziri, learned counsel on behalf of the NCT of Delhi and the Delhi Police submitted on instructions from the DCP (Traffic) present in court that the above proposal was acceptable and that suitable steps to implement the same would be taken at the earliest. We also direct all concerned agencies to cooperate and ensure that the road segregation of the S.P.Mukherjee Marg with the additional MV lane as proposed by M/s. Pradeep Sachdeva and Associates is implemented within six weeks from today. Just after the above was dictated in Court, Mr.Waziri informed the Court that that there was a rethink by the DCP (Traffic) and that even though earlier the proposal to do away with the free left slip road had been agreed to by the Govt. of NCT of Delhi, they were now opposed to the idea and wished to have a free left slip road. The concerned DCP Traffic is of the opinion that such a free slip road is necessary and that the Delhi Police is not comfortable with the idea of a buffer zone.

3. We notice in this regard that the UTTIPEC formulated Street Design Guidelines adopted by it in November 2009, which is the guiding norm for town-planning and design of various streets in the Govt. of NCT of Delhi. These guidelines inter alia state:

"Slip roads on Delhi roads are meant for the "signal free" movement of traffic, and to spare the left turning traffic from having to wait at traffic lights for taking a turn.

W.P. (C)4572/07, W.P.(C)8580/09 & CONT. CASE (C) 564/10 Page 3 While such car-oriented design features has not really helped reduce congestion on city roads, this design feature make "crossing the street safely" for pedestrians, cyclists, aged and physically challenged people an impossible task.

Making street-crossing unsafe for these road users further discourages walking and use of public transport, and therefore induces people to use private vehicles.

Therefore, from a pedestrian and cyclist safety standpoint, Slip roads are undesirable."

4. We are of the considered opinion that the UTTIPEC guidelines having been shown and discussed, and accepted in principle previously, should be acted upon. We also notice that the Govt. of NCT of Delhi is committed to the UTTIPEC guidelines and has agreed to implement the same. No reservation of the kind being voiced now, is on record, in any of the previous UTTIPEC meetings, including those chaired by the Lieutenant Governor. We accordingly direct all the authorities and agencies, including the Delhi Police, to cooperate and ensure that the proposal suggested and shown in Court today by M/s. Pradeep Sachdeva and Associates are implemented within the shortest possible time and in any event within six weeks from today.

Entry of buses into the Old Delhi railway station

5. Pursuant to the notice issued by this Court, the Northern Railways is present and is represented by Ms. Geetanjali Mohan, learned counsel. She stated that according to the agreed plan, buses were permitted entry into the

W.P. (C)4572/07, W.P.(C)8580/09 & CONT. CASE (C) 564/10 Page 4 Old Delhi railway Station on 26th May 2012 but that due to demonstrations and resistance by taxi pliers, however, implementation of the plan could not take place. During the hearing, Mr. Waziri, learned counsel for the Govt. of NCT of Delhi, Ms. Madhu Tewatia, learned counsel for the MCD and Ms. Indira Unninayar, learned counsel for the petitioner emphasized that there was considerable traffic congestion and chaos outside the Old Delhi railway station on account of the buses having to wait and being denied entry and the passengers who alight and walk along the street which in turn clogs the streets. It was submitted that the bus passengers are left in the lurch because they would have to travel a considerable distance from the alighting point to the station with heavy loads of luggage. Other passengers who travel in private vehicles, taxis or other private modes of transport do not face a similar hardship. Mr.Waziri submitted that if buses are allowed entry as they were earlier, a far greater number of passengers would be able to reach the station easily and thus avoid the traffic chaos which prevails in the area. Ms. Mohan, on the other hand, submitted that the situation which existed 22 years ago does not prevail now since there has been a 10-fold increase in the footfalls in the railway station. It was submitted that the taxi pliers, auto rickshaw and cycle rickshaw pliers have serious reservations to such proposal.

6. We are of the opinion that the experiment of allowing entry of buses into the Old Delhi railway station should be viewed as an essential component of the pilot project and tried on an experimental basis for 15 days to begin with. This is vital for gathering data. Also it is important to ensure equitable access to the railway station to all passengers whether approaching in a bus or other forms of transport. A few who travel through private modes

W.P. (C)4572/07, W.P.(C)8580/09 & CONT. CASE (C) 564/10 Page 5 of transport cannot be privileged over the rest. The Court accordingly directs the Govt. of NCT of Delhi, the Delhi Police and the Northern Railways to coordinate and ensure smooth functioning of the plan whereby DTC and other buses in the cluster system that are permitted to operate on DTC routes are allowed entry into the Old Delhi railway station. While collecting data, the concerned agency may take into consideration all the relevant parameters, including the average time spent by each bus, the number of passengers alighting from the buses or going into buses, after leaving the Railway Station and such like information which would be necessary for an assessment of the pilot project. While working out the plan, it is open to the Delhi Police and the other concerned agencies including the DTC to suggest a waiting period for the buses. Temporary sites for passengers to board the buses at the station may also be earmarked. Ms. Tewatia, learned counsel for the MCD stated that the Dangal Maidan, i.e. the ground opposite the station, has been vacated and has by an Office Order been earmarked for the exclusive use by buses with effect from 3rd May 2012. In view of this development, the Delhi Police and other concerned agencies tasked with the duty of implementing the UTTIPEC proposals and the directions of the Court shall make optimal use of the said open space in the Dangal Maidan for bus parking and to facilitate use of the vehicles by the passengers, who have to cross the road or who alight in order to get into the station from the opposite end of the road.

7. DRM (Railways), Delhi Division will for the above purpose, convene a meeting of the concerned officials of the Govt. of NCT of Delhi, the MCD, the DTC and the Delhi Police in the first instance on 6 th June, 2012 and ensure that steps are taken to implement the plan within the time frame

W.P. (C)4572/07, W.P.(C)8580/09 & CONT. CASE (C) 564/10 Page 6 indicated hereinabove.

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

W.P. (C)4572/07, W.P.(C)8580/09 & CONT. CASE (C) 564/10 Page 7 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.

Fees and Parking charges

10. MCD shall take a decision for fixing one-time registration fee for registration of the NMV. The registration shall remain valid for a period of five years. As regards the fee for licence, it shall be collected on three-yearly basis or for longer duration as may be decided by the MCD. However, it shall be ensured that the licence fee is commensurate with the nature of the vehicle and the economic strata of the applicants.

11. One major area of concern for cycle rickshaw owners and pliers is

W.P. (C)4572/07, W.P.(C)8580/09 & CONT. CASE (C) 564/10 Page 8 complete absence of parking areas. Ms.Tewatia stated on instructions that certain areas for this purpose have been earmarked in each zone. However, these are to be formally notified and permitted to be used for parking of NMVs. The MCD is directed to take immediate and expeditious steps to designate the NMV parking areas and announce the rules for their use.

12. Apart from the above, the Court is further of the opinion that the MCD may collect one-time parking charges at the time of grant of NMV registration so as to or reduce the scope of harassment of the NMV owners and/or pliers.

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.

CONT. CASE (C) 564/2010

14. This Court has considered the submissions on behalf of the petitioners and the MCD. The petitioners have also filed two reports dated 2nd May and 24th May 2012. Ms. Tewatia referred to a Circular dated 25th April 2012 and submitted that instructions have been issued by the MCD to ensure that no

W.P. (C)4572/07, W.P.(C)8580/09 & CONT. CASE (C) 564/10 Page 9 cycle rickshaw owner or plier is harassed in any manner and that after 1st May 2012 no NMV has been seized or impounded as is being alleged.

15. On the other hand Ms. Unninayar, learned counsel for the writ petitioners, highlighted the systematic harassment of the cycle rickshaw owners and pliers. The video clippings produced by the Petitioners and played in the Court prima facie reveal that there is a prevalent practice of illegal seizures by MCD officials of NMVs/rickshaws, their storage in illegal „yards‟, extraction of money from the pliers as „passing‟ fee etc.

16. Video clips pertaining to an incident which occurred on 28th April 2012 involving one Mr. Dhanik Lal were also played in the Court. Mr. Dhanik Lal is stated to have lost 90 of his 120 rickshaws to illegal seizures/confiscations by the MCD officials. The allegation pertaining to the incident was that one of the cycle rickshaws of Mr. Dhanik Lal was illegally confiscated by two MCD employees, Arvind and Devender and in relation to that incident Mr.Dhanik Lal had initially filed a complaint with Police Station (P.S.) Rohini South, alleging harassment by the said two MCD employees. Later the MCD is alleged to have filed a complaint with P.S. Keshavpuram alleging that Mr. Dhanik Lal and two of the members of the Petitioner organisation had „stolen‟ a rickshaw from MCD‟s yard. This led to their being picked up by the police. A video clip was played in Court which showed the intervention by Ms.Madhu Kishwar with the SHO at P.S. Keshavpuram to get them released. Ms.Kishwar informed the Court that a few days later policemen from P.S. Keshavpuram prevailed upon Mr. Dhanik Lal and that on 4th May 2012 he withdrew his complaint. She alleged that Mr. Dhanik Lal had gone missing ever since.

17. This Court directed Mr. Pawan Varma the learned Standing Counsel

W.P. (C)4572/07, W.P.(C)8580/09 & CONT. CASE (C) 564/10 Page 10 for the Govt. of NCT of Delhi to make enquiries. He obtained the relevant file from the concerned P.S. SHO, PS Rohini South - Sh. Jai Prakash - who is also present. It was submitted that Mr. Dhanik Lal is indeed in Delhi. Mr.Varma assured that on the basis of the facts revealed in Court, an FIR would be registered as it prima facie appeared to disclose a cognizable offence. In these circumstances, the Govt. of NCT of Delhi is directed to take suitable action immediately and investigate the matter. During the course of investigation, the statements of all necessary witnesses, including Mr. Dhanik Lal and members of the petitioner organisation, who was present at that time, shall be recorded. The video clips shown in the Court shall also be handed-over to the Delhi Police for investigation. After completion of investigation, the police shall take necessary action and file the report before the concerned Magistrate in accordance with law.

Inquiry into complaints of NMV pliers

18. As far as the allegations of widespread and systematic illegal activities of some sections of the MCD is concerned, this Court is of the opinion that the same cannot be left at that and that some enquiry is necessary. Since these complaints have arisen in the course of contempt proceedings filed by the writ petitioners seeking implementation of the judgment which had declared illegal the confiscation and impounding of cycle rickshaws, they assumes seriousness.

19. To enquire into these allegations by NMV owners and/or pliers, the Court appoints Mr. Bharat Bhushan, a retired Additional District Judge as Enquiry Officer (EO). The District Judge-in- charge, Saket Courts is hereby requested to make available to the EO any appropriate space in the Saket

W.P. (C)4572/07, W.P.(C)8580/09 & CONT. CASE (C) 564/10 Page 11 District Courts Complex to facilitate the enquiry. The scope of the enquiry will be to examine the veracity of the complaints made by the NMV owner/pliers of harassment and violation of the Court‟s judgment and orders, identify and fix responsibility on the concerned officials of the MCD, the Delhi Police and any other agency involved, and to suggest measures to bring about effective enforcement of the Court‟s directions issued from time to time.

20. It is clarified that the incident involving Mr.Dhanik Lal, including the complaint made by him to the P.S.Rohini South and the complaint against him and the members of the Petitioner organisation in the Keshavpuram P.S. will not form part of the enquiry by the EO as that would be investigated separately by the police.

21. A complete set of the contempt petition paperbook including the pleadings shall be provided to the EO by the Registry within two weeks. The EO shall examine the complaints by the other NMV owners/pliers some of whom have already filed affidavits in these proceedings. The EO shall have public notices issued, at the cost of the MCD, about the enquiry proceedings and grant two weeks‟ time for the filing of further complaints/ affidavits by NMV owners/pliers and a further period of two weeks for replies thereto by the concerned agencies. The EO shall be free to record the statements of all the relevant witnesses and take on record the necessary documents. The MCD, Delhi Police and other agencies and the Petitioner organisations shall extend their full cooperation to the EO in the enquiry. The EO shall be free to inspect any sites, take photographs and record videos of places and depositions of persons on oath as deemed necessary.

22. The remuneration payable to the Enquiry Officer shall be

W.P. (C)4572/07, W.P.(C)8580/09 & CONT. CASE (C) 564/10 Page 12 Rs.2,00,000/- to be shared equally by the Govt. of NCT of Delhi, the MCD and the Delhi Police. 50% of the fee shall be paid to the EO within four weeks and the balance on the conclusion of the enquiry. The MCD and the Delhi Police shall arrange for the transport for the EO. While minimal infrastructural support in terms of staff and facilities shall be provided by the District Judge, Saket, the Delhi Police and the MCD will share equally the expense of the secretarial and other staff as may be engaged by the EO. In case any clarification is required in this regard, the EO and the parties are at liberty to apply to the Court. The EO shall devise his own procedure and furnish a report within a period of four months from today.

Directions to the DLSA

23. This Court is further of the opinion that there is a need to put in place an effective legal redressal mechanism for the NMV owners/pliers who may face harassment. The Court has had the benefit of the suggestions of Ms.Asha Menon, Secretary Delhi Legal Services Authority (DLSA) to whom notice was issued on the previous date. She informs the Curt that the DLSA has trained para legal volunteers whose services could be utilized in conjunction with the panel lawyers of the DLSA. The para legals can be contacted through the Samajik Suvidha Kendras (SSK) - a community based programme of the Govt. of NCT of Delhi - which has a wide network of centres in the NCT of Delhi. The DLSA will issue suitable instructions to the para legal volunteers at the SSK centres to extend assistance to an NMV owner/plier who has a complaint to register with the police. The para legal attached to an SSK will contact the panel lawyer of the DLSA or the nearest District Legal Services Committee and assist in the owner/plier lodging his

W.P. (C)4572/07, W.P.(C)8580/09 & CONT. CASE (C) 564/10 Page 13 complaint with the police and help him follow up the complaint. If there is inaction by the police, or it is otherwise felt necessary, legal assistance will be provided to the NMV owner/plier to institute proceedings under Sections 156(3) or 200 Cr.PC. The Petitioner organisations will coordinate with the DLSA in giving adequate publicity to the above scheme of legal assistance among the NMV owners/pliers.

24. List on 27th July 2012 at 3 pm.

25. Order dasti to the parties under the signatures of the Court Master. A certified copy of this order be delivered forthwith to Mr. Bharat Bhushan, retired ADJ, the District Judge-in-charge, Saket Courts Complex.

S. RAVINDRA BHAT (JUDGE)

S. MURALIDHAR (JUDGE) JUNE 2, 2012 'ajk'

W.P. (C)4572/07, W.P.(C)8580/09 & CONT. CASE (C) 564/10 Page 14