Delhi High Court
Nipun Malhotra vs Government Of Nct Of Delhi & Ors. on 1 June, 2018
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 9643/2017, CM Nos. 39251/2017, 12571 &
14652/2018
NIPUN MALHOTRA ..... Petitioner
Through : Mr. Jai Dehadrai, Ms.
Shivangini Gupta and Mr.
Sidharth Arora, Advs. along with
Mr. Nipun Malhotra and Ms.
Preeti Singh in person.
Mr. Aman Panwar and Mr.
Sangam Kumar, Advs. for P-3.
Mr. Shrutanjaya Bhardwaj and
Ms. Neha Mathen, Advs. for P-4.
versus
GOVERNMENT OF NCT OF DELHI & ORS. Respondents
Through : Mr. Sanjoy Ghose, ASC, GNCTD
with Ms. Urvi Mohan, Adv.
Mr. Arjun Pant, Adv. for DDA.
Mr. Dhruv Mehta, Sr. Adv. with
Mr. Sameer Vashisht, ASC along
with Ms. Trisha Nagpal, Adv. for
R-5.
Mr. Ajay Digpaul, CGSC with
Ms. Madhuri Dhingra, Adv. for
R-7/MORT&H.
Mr. Darpan Wadhwa, Sr. Adv.
with Mr. Aakarshan Sahay and
Ms. Neha Khandelwal, Advs. for
R-9.
Mr. Sandeep Narain, Adv. for R-
10/Ashok Leyland Ltd.).
Mr. Krishna Kumar Sharma,
Adv. for Mr. A.S. Kulshrestha,
Adv. for DMRC.
Ms. Avnish Ahlawat and Ms.
W.P.(C)No.9643/2017 Page 1 of 74
Palak Rohmetra, Advs. for DTC.
+ W.P.(C) 5142/2018
NIPUN KUMAR MALHOTRA ..... Petitioner
Through : Mr. Jai Dehadrai, Ms.
Shivangini Gupta and Mr.
Sidharth Arora, Advs. along with
Mr. Nipun Malhotra and Ms.
Preeti Singh in person.
versus
GOVT. OF NCT OF DELHI AND ANR. ..... Respondents
Through : Mr. Sanjoy Ghose, ASC, GNCTD
with Ms. Urvi Mohan, Adv.
Mr. Dhruv Mehta, Sr. Adv. with
Mr. Sameer Vashisht, ASC along
with Ms. Trisha Nagpal, Adv. for
R-2.
Ms. Avnish Ahlawat and Ms.
Palak Rohmetra, Advs. for DTC.
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE C.HARI SHANKAR
ORDER
% 01.06.2018
1. In view of our order dated 1st June, 2018, we are hereunder
recording our reasons for continuation of the assurance made by Mr.
Anand Grover, ld. Senior Counsel on 14th May, 2018 and prohibiting
the respondents from acquiring standard floor buses.
2. In the training programme, conducted by the Delhi High Court,
on 12th and 13th July, 2014, captioned as "Making court room practices
responsive towards victims of sexual offences", one of the resource
persons in the session on Laxmi Narayan Tripathi, a six feet plus
transgender activist, while leading a training session of 60 judges, 20
prosecutors, 40 police officials and 20 legal aid lawyers at the District
Courts, Saket, stood before them and asked the following poignant
question :
"Am I invisible?"
3. There was stunned silence in the room as keeping in view of
Laxmi's vibrant personality, the answer was so obvious. Laxmi had to
repeat the question multiple times before there was a roar of a negative
response. What Laxmi stated thereafter sums up exactly what
specially-abled people in Delhi in the present case, must be
experiencing. Laxmi Narayan Tripathi, then asked all the legally trained
minds in the room :
"Then why do you treat me so?"
This is the very question which the petitioner nos. 1 and 2 on
wheelchairs before us are asking of the respondents before us. Why are
they being treated as invisible and non-existent despite the
Constitutional recognition of their rights as well as the statutory
provisions of the Rights of Persons with Disability Act, 2016 ensuring
equality and non-discrimination to the differently-abled?
Background facts
4. Certain background facts first. W.P.(C) No. 9643/2017 was filed
by Mr. Nipun Malhotra (petitioner no.1), who has severe locomotor
disability from birth, called "arthrogryposis", which is a medical
condition which leads to a lack of muscles in his arms and legs and
renders him permanently dependant on a wheelchair for basic mobility.
Despite the limitation from this medical condition, the petitioner no.1
along with his mother Mrs. Priyanka Malhotra has set up the Nipman
Foundation which is actively involved in the field of disability rights.
5. The writ petition assails the Cabinet Decision No.2503 & 2504
taken on 1st September, 2017 for acquisition of standard floor buses
which were to be rolled out within one year depriving numerous
persons with disabilities residing in Delhi, as well as ousting senior
citizens, from access to public transport. We reproduce these decisions
hereafter:
"GOVERNMENT OF NATIONAL CAPITAL TERRITORY
OF DELHI
CENTRAL ADMINISTRATION DEPARTMENT
(CO-ORDINATION BRANCH)
DELHI SECRETARIAT, I.P. ESTATE, NEW DELHI
No. F.3/32017/GAD/CN/ Dated: 04.09.2017
CABINET DECISION NO. 2503 DATED 01/09/2017
Subject: Engagement of 1000 Fully Built CNG Propelled
Standard Size Buses with 900 mm floor height
through Private Entities in Cluster No. 13,16 and
14(partial) by the Transport Department.
Decision: The Council of Ministers considered the note of
Secretary (Transport) and approved the proposal
contained in para-7 of the cabinet note with the
direction that the roll out will begin within 06
months and be completed within 10 months.
--Sd/--
(Dr. M.M. Kutty)
Secretary to the Cabinet
Dated: 04.09.2017
No. F.3/3/2017/GAD/CN"
"GOVERNMENT OF NATIONAL CAPITAL TERRITORY
OF DELHI
CENTRAL ADMINISTRATION DEPARTMENT
(CO-ORDINATION BRANCH)
DELHI SECRETARIAT, I.P. ESTATE, NEW DELHI
No. F.3/32017/GAD/CN/ Dated: 04.09.2017
CABINET DECISION NO. 2504 DATED 01/09/2017
Subject: Procurement of 1000 Fully built Non-AC CNG
propelled standard size buses with standard floor
height of 900 mm by DTC without AMC from
Vehicle Manufacturers.
Decision: The Council of Ministers considered the note of
Secretary (Transport) and approved the proposal
contained in para-7 of the cabinet note with the
direction that the roll out will begin within 08
months and be completed within 12 months.
--Sd/--
(Dr. M.M.Kutty)
Secretary to the Cabinet
Dated: 04.09.2017
No. F.3/3/2017/GAD/CN"
6. These decisions were given publicity in newspapers on the 7th of
September 2017, which newspaper clipping are annexed to the writ
petition.
7. WP(C) No. 9643/2017 was filed on or around 16th October, 2017
seeking the following prayers:
"(a) Issue a writ, order or direction in the nature of
mandamus directing the Respondents 1 - 4 to take immediate
and urgent steps to stay the purchase of 2000 public
transport standard floor buses.
(b) Issue a writ, order or direction in the nature of
mandamus directing the Respondents no.1-4 to provide the
rationale behind the decision to procure non-disabled
friendly public transport standard floor buses;
(c) Issue a writ, order or direction in the nature of
mandamus directing the Respondents no.1-4 to take
immediate and urgent steps to conduct a feasibility study
involving representatives from the disabled community for
procurement of disabled friendly, accessible low-floor public
transport;
(d) Direct the Respondents to mandatorily involve Persons
with Disability, such as Petitioner in policy decisions, such
as purchase of public transport, which affects Persons with
Disability, so that their issues are addressed and resolved
without undue delay;
(e) To award costs of this Petition to the Petitioner;
and/or."
8. So far as Cabinet Decision No.2503 & 2504 taken on 1st
September, 2017 for acquisition of standard floor buses is concerned, to
support this decision, the Transport Department - respondent no.4 in its
status report dated 13th November, 2017 has stated as follows :
"a. The Council of Ministers, Government of NCT of Delhi
vide Cabinet Decisions No.2503 & 2504 dated 01.09.2017
inter-alia decided that 1000 fully built Non-AC CNG
propelled standard size buses with standard floor height of
900 mm, each, shall be inducted in Cluster and DTC
operation (total 2000 buses);
b. The powers for selection of low floor, semi low floor
and standard floor height buses is given to the State
Government by the Bus Body Code issued by MORTH, GOI
under relevant provisions of CMVR. (A copy of the said
provisions is annexed herewith and marked as Annexure-I);
c. The Hon'ble Supreme Court has also decided that
selection of the height of the floor of the bus shall be made by
the State Government in accordance with the bus body code.
(A copy of the relevant order passed by the Hon'ble Supreme
Court is annexed herewith and marked as Annexure-II);
d. It is pertinent to mention here that Ministry of Road,
Transport & Highways, Government of India (hereinafter
"MoRTH") vide their letter dated 04.03.2016 referred the
meeting of the Committee of Secretaries held on 18.01.2016
to review the Accessible India Campaign (Sugamya Bharat
Abhiyan) wherein one of the specified targets is that 10% of
Government owned public transport is to be made fully
accessible to the Persons with Disability by March, 2018. (A
copy of the letter dated 04.03.2016 is annexed herewith and
marked as Annexure-III);
e. The MoRTH, GOI further requested that all the State
Governments/Union Territories complies with the directions
and ensure that 10% of Government owned public transport
be made accessible to the Persons with Disability by March,
2018;
f. Vide letter dated 07.04.2017, the MoRTH further
requested the Managing Director of all the STUs to take
necessary action as per Motor Vehicles Act for making 10%
of Government owned public transport vehicle fully
accessible to the Persons with Disability by March, 2018. (A
copy of the letter dated 07.04.2017 is annexed herewith and
marked as Annexure-IV)."
9. Thereafter, on the 20th April, 2018, Sh. Nipun Malhotra, filed
WP(C) No. 5142/2018, challenging the tender of procurement of 1000
buses by the Govt. of NCT Delhi pursuant to the above Cabinet
decision, and sought the following prayers:
"(a) Issue a writ, order or direction in the nature of Mandamus,
thereby quashing, setting aside and declaring as null and void
the RFP Document dated 15.03.2018 issued by the Respondent
No. 3 for open tender of 1000 Standard Floor Buses.
(b) Direct the Respondents to mandatorily involve Persons
with Disability, such as Petitioner in policy decisions, such as
purchase of public transport, which affects Persons with
Disability , so that their issues are addressed and resolved
without undue delay.
(c) To award costs of this Petition to the Petitioner;"
10. So far as the acquisition of these buses is concerned, the
Transport Department of GNCTD has placed a short note on a scheme
for running what are termed as "cluster buses" in Delhi. For
expediency, we extract the same hereunder :
"A. ISSUES INVOLVED
i. That in the Public Interest Litigation bearing W.P.(Crl.)
878/2007 titled 'Court on its own motion vs. State of Delhi &
Ors.', taking note of the havoc created by repeated fatal
accidents being caused by erstwhile 'Blue-Line' buses operating
in Delhi and the order passed by the Hon'ble Supreme Court of
India in M.C. Mehta vs. Union of India (1997) 8 SCC 770, the
Hon'ble Division Bench of the Delhi High Court issued Suo-
Moto notice to the GNCT of Delhi and the Ministry of Transport,
Government of India, the central theme being to direct the
Government to formulate a proper policy and provide better
transport system in the city, including adequate number of
transport buses.
ii. That pursuant to the orders passed by the Hon'ble Court
directing that the Scheme for replacement of blue line buses be
prepared and filed by the specified date. The Transport
Department, Govt. of NCT of Delhi had entrusted the task of
providing the required consultancy for formulating the detailed
Scheme to DIMTS (Delhi Integrated Multi-Model Transit
System). DIMTS thereafter, submitted the report titled "Report
on Methodology for operations of Privately Owned Stage
Carriage Buses in Delhi" on October 31, 2007.
iii. That accordingly, the Government of NCT of Delhi in an
effort to provide a safer, more efficient, reliable and better
quality public transport system for the benefit of commuters,
decided to introduce a new scheme for operation of Private Stage
Carriage Services. The Scheme provided for private stage
carriage buses through corporate entities to replace the existing
blue line buses run by the individual private operations. The
new scheme envisaged the concurrent operation of DTC and
private operators in 'Clusters' under a unified time table with
each cluster being part of a network for providing stage
carriage services for Delhi.
xxx xxx xxx
v. That the Delhi Integrated Multi Modal Transit System
Limited (DIMTS) was appointed by the GNCTD as the
integrating mechanism on its behalf to manage, supervise and
oversee the day to day operation of the cluster buses under a
Agreement in this regard between the Department of Transport
and DIMTS.
vi. That currently, 1652 buses are in operation in 08
operative clusters and global tenders for induction of additional
1000 buses under 04 new cluster projects are at the final stages
of consideration"
(Emphasis by us)
11. So far as the decision which has been assailed in the writ petition
is concerned, the respondents have set out the following steps taken by
it :
"C. STAGE OF TENDERS
Sr.No. Particulars Dates
1. Approval of the Cabinet for 01.09.2017
engagement of 1000 cluster buses
2. Approval of the Cabinet for Tender 09.01.2018
Documents
3. Publication of Tender in newspapers 20.01.2018
4. Last date of submission of 21.02.2018
bids/opening of bids
5. Submission of Technical Evaluation 31.03.2018
Report
6. Opening of Price Bid 12.04.2018
7. Submission of Financial Evaluation 18.04.2018
Report
8. Approval of Cabinet for Award for 18.05.2018
Contract to Concessionaires
9. Issue of LOA and signing of Subject to the
Concession Agreement outcome of
WP(C)
9643/2017
*Creation of prospective employment options: 6,500
*Total Capital Cost involved: Approximately more than Rs.380
crores"
12. It has been impressed upon us that the tenders which have been
issued on this occasion are purely for providing transportation in rural
areas. In the short note placed before us, the respondents have
elaborated on the concept and specifications of cluster buses in the
following terms :
"B. CONCEPT AND SPECIFICATIONS OF CLUSTER
BUSES
A Cluster is a collection of routes served in a 50: 50 ration
under a UTT (Unified Time Table) by buses of state owned
entity (DTC) and buses owned by a private corporate entity, the
said entity having been selected through an open, competitive
bidding process. It is the privately-owned fleets introduced
across the Cluster system that are known as Cluster buses.
Under the Cluster scheme, 657 stage carriage bus designated
routes of Delhi were bunched into 17 distinct clusters. Each
route-cluster is to be served by buses of Delhi Transport
Corporation (the state transport corporation) and those owned
by corporate entities-the latter being selected by a process of
competitive bidding- in a 50:50 ratio. Buses of both entities are
to operate on every route under a unified time table (UTT)
mandated by the State Transport Authority. This makes for
optimal utilization and integration of capacity and assets.
The cluster system is based on a gross-cost model of contracting,
where fleet-owners are remunerated on the basis of operational
parameters irrespective of the fare-box inflow. The fare-box
collection is retained by the government through the conductors
deployed. Operational efficiencies and observance of
performance benchmarks which are monitored by DIMTS, are of
the primary importance.
It is pertinent to note that the buses under the Cluster Scheme are
purchased by private corporate entitles/bus operators and the
role of the Govt. of NCT of Delhi is limited to managing the
operation of the same as well as meeting the viability gap funding
in respect thereof."
13. So far as the current tenders are concerned, it is stated as follows:
"vii. That the Government of NCT invited Request for
Qualification(RFQ) documents from eligible entities for four
projects-for operation of stage carriage services. The bid is for
1000 non AC Bus services catering to 117 routes out of which
106 routes are serving villages. The evolution of the bid was
based on L-1 composite rates. After due evaluation of proposals,
the Government of NCT of Delhi has accepted the proposal of L-
1 bidders and bank guarantees have been taken from the bidders.
The name of depots are Revla Khanpur, Dwarka Sector-22,
Kharkhari Nahar, Bawana Sector 1 and Rani Khera, 1, 2 & 3,
all of which are depots located in rural belts of NCT of Delhi and
are designed for operation of standard floor buses only."
14. During the hearing on the 14th of May, 2014, an assurance given
to us was by Mr. Anand Grover, ld. Senior Counsel, who appeared on
behalf of the GNCTD and DTC before us, to the effect that no contract
will be awarded so far as the acquisition of standard floor buses is
concerned, till the next date of hearing. We had recorded the following
order :
"7. We are assured by Mr. Anand Grover, ld. Senior
Counsel appearing for the Government of NCT of Delhi and
the DTC that no contract will be awarded so far as the
acquisition of standard floor buses is concerned till the next
date of hearing. The respondents shall remain bound by this
statement."
15. Difficulties are expressed by the GNCT of Delhi and the DTC
that the bindingness of the assurance be waived and the respondents be
permitted to proceed with the matter of acquisition of standard floor
buses. Grant of this permission enables the respondents to violates the
specific directions made by the Supreme Court in W.P.(C)No.243/2005
Rajive Raturi v. Union of India as well as the directions made by this
court on 26th March, 2007 in Court on its Own Motion v. Union of
India.
We have expressed our inability to do so.
16. The Delhi Transport Corporation has commenced making
submissions in this regard. However, hearing in the matter could not be
completed on the 1st of June, 2018,whereafter the court closed for the
summer vacations from 3rd June till 1st July, 2018.
17. We record hereunder the prima facie reasons for which the
prohibition has to continue.
18. We hasten to add that these reasons are not a final view in the
matter which has to be taken after conclusion of the hearing all the
parties. The petitioner and respondents (other than the DTC) have not
been heard.
19. We have been called upon to put our seal of approval on this
effort to again roll out a program of standard floor buses. Can we do
so? Law does not permit it and the answer has to be in the negative.
We discuss the same hereafter.
International Conventions and Instruments
20. Exclusion and discrimination of people with disabilities has
engaged attention all over the world. It was the subject matter of the
meeting held by the Government of Asia and Pacific Countries (ESCAP
Region) at Beijing between 1st December, 1992 to 5th December, 1992
which adopted the proclamation on "Full participation and equality of
people on the disabilities in the Asia and Pacific regions".
21. Issues regarding rights of the disabled were raised in 2005 in a
writ petition being W.P.(C)No.243/2005, Rajive Raturi v. Union of
India & Ors. While this writ petition was pending before the Supreme
Court, an important development at the international scenario took
place, so far the persons with disability are concerned. On the 13th of
December 2006, the United Nations General Assembly adopted the
United Nations Conventions on the Rights of Persons with Disabilities.
Article 3 of the Convention on the Rights of Persons with Disabilities
lays down the following essential principles for empowerment of such
persons :
"(a) respect for inherent dignity, individual autonomy
including the freedom to make one's own choices, and
independence of persons;
(b) non-discrimination;
(c) full and effective participation and inclusion in society;
(d) respect for difference and acceptance of persons with
disabilities as part of human diversity and humanity;
(e) equality of opportunity;
(f) accessibility;
(g) equality between men and women;
(h) respect for the evolving capacities of children with
disabilities and respect for the right of children with
disabilities to preserve their identities;"
(Emphasis Supplied)
22. India is a signatory to this Convention, also having ratified it on
1st October, 2007. India is bound to discharge its international
obligations thereunder to ensure the above rights to the persons with
disabilities and to take all steps in this behalf.
Legal Position in India - statute, law, bye-laws, regulations,
Guidelines
23. It took India almost 10 years to discharge its international
obligations so far as the rights of persons with disabilities are concerned
after the Convention was adopted in 2006. Rajive Raturi remained
pending in the Supreme Court of India.
24. The Rights of Persons with Disabilities Act, 2016 (Act 49 of
2016) was enacted to implement the principles for empowerment of
persons with disabilities as laid down in the aforesaid United Nations
Convention.
25. We may extract the relevant statutory provisions of this law so
far as the present consideration is concerned:
"2. Definitions.-- In this Act, unless the context otherwise
requires,--
xxx xxx xxx
(h) "discrimination" in relation to disability, means any
distinction, exclusion, restriction on the basis of disability
which is the purpose or effect of impairing or nullifying the
recognition, enjoyment or exercise on an equal basis with
others of all human rights and fundamental freedoms in the
political, economic, social, cultural, civil or any other field
and includes all forms of discrimination and denial of
reasonable accommodation;
xxx xxx xxx
(l) "high support" means an intensive support, physical,
psychological and otherwise, which may be required by a
person with benchmark disability for daily activities, to take
independent and informed decision to access facilities and
participating in all areas of life including education,
employment, family and community life and treatment and
therapy;
xxx xxx xxx
(y) "reasonable accommodation" means necessary and
appropriate modification and adjustments, without imposing
a disproportionate or undue burden in a particular case, to
ensure to persons with disabilities the enjoyment or exercise
of rights equally with others;
xxx xxx xxx
40. Accessibility: - The Central Government shall, in
consultation with the Chief Commissioner, formulate rules
for persons with disabilities laying down the standards of
accessibility for the physical environment, transportation,
information and communications, including appropriate
technologies and systems, and other facilities and services
provided to the public in urban and rural areas.
41. Access to transport
(1) The appropriate Government shall take suitable
measures to provide,--
(a) facilities for persons with disabilities at bus stops,
railway stations and airports conforming to the
accessibility standards relating to parking spaces,
toilets, ticketing counters and ticketing machines;
(b) access to all modes of transport that conform the
design standards, including retrofitting old modes of
transport, wherever technically feasible and safe for
persons with disabilities, economically viable and
without entailing major structural changes in design;
(c) accessible roads to address mobility necessary for
persons with disabilities.
(2) The appropriate Government shall develop schemes
programmes to promote the personal mobility of persons
with disabilities at affordable cost to provide for,--
(a) incentives and concessions;
(b) retrofitting of vehicles; and (c) personal mobility
assistance.
(c) personal mobility assistance"
xxx xxx xxx
46. Time limit for accessibility by service providers:-
The service providers whether Government or private
shall provide services in accordance with the rules on
accessibility formulated by the Central Government under
section 40 within a period of two years from the date of
notification of such rules:
Provided that the Central Government in consultation
with the Chief Commissioner may grant extension of time for
providing certain category of services in accordance with the
said rules.
47. Human Resource Development-
(1) Without prejudice to any function and power of
Rehabilitation Council of India constituted under the
Rehabilitation Council of India Act, 1992, the appropriate
Government shall endeavour to develop human resource
for the purposes of this Act and to that end shall,--
(a) mandate training on disability rights in all courses
for the training of Panchayati Raj Members,
legislators, administrators, police officials, judges and
lawyers;
(b) induct disability as a component for all education
courses for schools, colleges and University teachers,
doctors, nurses, para-medical personnel, social
welfare officers, rural development officers, asha
workers, anganwadi workers, engineers, architects,
other professionals and community workers;
(c) initiate capacity building programmes including
training in independent living and community
relationships for families, members of community and
other stakeholders and care providers on care giving
and support;
(d) ensure independence training for persons with
disabilities to build community relationships on mutual
contribution and respect;
(e) conduct training programmes for sports teachers
with focus on sports, games, adventure activities;
(f) any other capacity development measures as may
be required.
(2) All Universities shall promote teaching and research in
disability studies including establishment of study centres for
such studies.
(3) In order to fulfil the obligation stated in sub-section (1),
the appropriate Government shall in every five years
undertake a need based analysis and formulate plans for the
recruitment, induction, sensitisation, orientation and training
of suitable personnel to undertake the various responsibilities
under this Act.
48. Social audit-
The appropriate Government shall undertake social audit of
all general schemes and programmes involving the persons
with disabilities to ensure that the scheme and programmes
do not have an adverse impact upon the persons with
disabilities and need the requirements and concerns of
persons with disabilities.
xxx xxx xxx
100. Power of Central Government to make rules-
(1) The Central Government may, subject to the condition of
previous publication, by notification, make rules for carrying
out the provisions of this Act.
(2) In particular, and without prejudice to the generality of
the foregoing power, such rules may provide for all or any of
the following matters, namely:--
(a) the manner of constituting the Committee for
Research on Disability under sub-section (2) of section
6;
(b) the manner of notifying the equal opportunity
policy under sub-section (1) of section 21;
(c) the form and manner of maintaining records by
every establishment under sub-section (1) of section
22;
(d) the manner of maintenance of register of
complaints by grievance redressal officer under sub-
section (3) of section 23;
(e) the manner of furnishing information and return by
establishment to the Special Employment Exchange
under section 36;
(f) the composition of the Assessment Board under sub-
section (2) and manner of assessment to be made by
the Assessment Board under sub-section (3) of section
38;
(g) rules for person with disabilites laying down the
standards of accessibility under section 40;
xxx xxx xxx"
Harmonised Guidelines and Space Standards for Barrier Free Built
Environment for Persons With Disabilities and Elderly Persons
26. The petitioner has placed before this court directions issued by
the Ministry of Urban Development, Government of India in February,
2016 titled "Harmonised Guidelines and Space Standards for Barrier
Free Built Environment for Persons With Disabilities and Elderly
Persons" (hereafter referred to as the 'Harmonised Guidelines').
These also came into existence while Rajive Raturi was pending
adjudication.
27. Under para 11.7 of these Harmonised Guidelines, explicit
imperatives so far as public transport is concerned are made. We
extract hereunder the relevant extract of the Harmonised Guidelines so
far as buses are concerned:
"11.7 Public Transport
11.7.1 Land Transport
11.7.1.1 General
Buses, trams, taxis, mini-buses and three-wheelers
should be designed as far as practicable to include
facilities that can accommodate people with
disabilities.
New vehicles when purchased should comply with
accessibility standards to enable all people, including
those in wheelchairs, to use the service provided.
Equally important, travel routes to bus stops should
also be barrier-free to ensure that persons can travel
from their homes to their chosen pick-up point.
Training should be provided for drivers to help them
become aware of the needs of Persons with
Disabilities.
For details regarding accessible bus stops refer to
Section 10.3.
11.7.1.2 Accessible buses
Accessible buses should have the following features:
Bus doors should be at least 1200 mm wide;
Should be low floor;
Have handrail and footlight installed; and
Have apparatus such as a hydraulic lift or pull-
out/foldable ramp (Figure 11-7) installed in the
doorway for mobility aided users/ prams.
Wheelchair spaces
- Space for a wheelchair should be provided in an
appropriate position, without preventing other
passengers from getting on and off (Figure 11-8);
- The location of that space should be as indicated,
inside and outside the bus, using the standard symbol
for wheelchair accessibility; and
- Wheel stoppers and wheelchair safety belts should
be provided
Alighting Buzzers
- An appropriate number of alighting buzzers should
be provided in positions that are easily accessible for
seated or standing passengers; and
- The push button of an alighting buzzer should be
clearly visible; of adequate size, installed at 900 mm to
1200 mm from the bus floor level and display the
information in Braille/raised numbers as well.
Information Signs
- Information on the names of all stops along a bus
route should be indicated inside the bus by displaying
the text in a suitable position; and
- Information on a route and its final destination
should be displayed outside the bus in large text,
especially on the front and side of the bus. This
information should be in a bright contrasting colour
and be well illuminated be an external light to make it
readable in the dark."
(Emphasis supplied)
28. The guidelines harmonise standards and ensure equality for
persons with disabilities and elderly persons as is evident from their
title.
Judicial Precedents
29. Bus transportation system constitutes a large part of traffic in
Delhi. It has been the subject matter of consideration from several
critical aspects by the Supreme Court of India and this court. Before
dealing with the factual background, we extract hereunder in
chronological order the law on the subject in judicial pronouncements.
30. The aspect of control and regulation of the traffic as well as
consequential issues of public safety in the NCT of Delhi as well as the
National Capital Region of Delhi are of paramount concern therefore,
within the ambit of the right to life guaranteed under Article 21 of the
Constitution of India was the subject matter of writ petition being
W.P.(C)No.13029/1985, M.C. Mehta v. Union of India wherein series
of orders were passed by the Supreme Court. The Supreme Court was
also concerned with the impact of vehicular pollution on environmental
degradation. This writ petition being W.P.(C)No.13029/1985 was
clubbed with W.P.(C)No.939/1996, both entitled M.C. Mehta v. Union
of India & Ors. Realising the urgency and importance of protection and
improvement of the environment, in these writ petitions the court had
given direction from time to time impressing upon the authorities to
take urgent steps to tackle the problem of vehicular pollution in Delhi.
31. Another order passed on 28th July, 1998 which came to be
reported at (1998) 6 SCC 63, the court noted in para 1 that assurances
had been held out to the court through various affidavits filed by the
competent officers of the Govt. of NCT of Delhi, that "effective steps
shall be taken in a phased manner with a specified time-span". It was
observed by the court that "in spite of the matter having engaged the
attention of this court for a long time and lengthy debates on each
hearing, precious little appears to have been done by the State
Administration to check and control the vehicular pollution". The court
noted that then vehicular pollution contributed to 70% of air pollution,
as per the White Paper by the Government of India as compared to 20%
in 1970. No concrete steps had been taken as proposed in the White
Paper which had the deadline of 1st April, 1998.
32. In para 3, the court had noted the following measures proposed
by the Committee headed by Shri Bhure Lal, with the time frame in its
action report filed before the Supreme Court :
"3. xxx xxx xxx
Time-frame
(A) Augmentation of public transport 1-4-2001
(stage carriage) to 10,000 buses.
xxx xxx xxx"
(Emphasis by us)
33. So far as the above time frame to ensure the above was
concerned, in para 4, the court had directed as follows :
"4. We approve the directions given and the time-frame
fixed by Shri Bhure Lal Committee. The time-frame, as
fixed by that Committee and today by this Court, in
consultation with learned counsel for the parties, shall be
strictly adhered to by all the authorities who shall also take
effective and adequate steps to bring to the notice of the
public, both through print and electronic media, various
directions issued by this Court from time to time in general
and the directions hereinabove contained in particular.
Report in this behalf shall be filed in the Court within four
weeks. We administer a strong caution to all concerned that
failure to abide by any of the directions hereinabove noticed
would invite action under the Contempt of Courts Act, 1971
against the defaulters."
(Emphasis by us)
34. In one of the orders reported at (1997) 8 SCC 770 M.C Mehta v.
Union of India, the court had observed that "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 Art. 21 of
the Constitution" and therefore it was the "obligation of this court
under Article 32 of the Constitution" which was invoked with aid of
Article 142 to give the necessary directions which were being given in
the court.
35. It appears that the Delhi High Court was also concerned with the
impact of the influx of light and heavy vehicular traffic with the
tremendous increase in population making roads of Delhi increasingly
dangerous to human lives. Mr. Jai Dehadrai, learned counsel for the
petitioner has drawn our attention to the matter of public safety,
reduction of road accidents as well as the State responsibility of
ensuring that it was disabled friendly.
36. Suo motu cognizance of these issues was taken in the matter
which was registered as W.P.(C)No.16565/2006 registered as Court on
its Own Motion v. Union of India which was being heard along with
W.P.(Crl.)No.207/2004. In this regard, the decision of the court
rendered on 26th March, 2007 which has been reported at 139 (2007)
DLT 244 : 2007 (96) DRJ 580, Court on its Own Motion v. Union of
India & Ors. has been placed before us. It would be appropriate to
refer to the submissions made by the Delhi Transport Corporation with
regard to the manner in which the occurrence of accidents could be
reduced. We extract hereunder the submissions noted by the court and
the observations made in paras 29 to 31 and 37 hereunder :
"29. It was commonly conceded before us that in order to
reduce accidents particularly by buses, the DTC buses
and/or the buses plying in Delhi under the permits issued by
the State Transport Authority, will be the buses where the
seat of the driver is on a lower floor. These will be low floor
buses having a bigger front screen. The recommendation of
the Committee in this regard reads as under:
Revised Standards for Bus Body : It was noted that
standards with respect to bus body specifications were
notified on 16.9.05. The attendees decided that
suitable changes would be made to ensure that the
standards were compatible with international
practices and designs, by positioning the driver in a
sufficiently advantageous position at a lower level
and with greater visibility. Such changes would be
approved by the Central Motor Vehicles Rules
Technical Standing Committee, and notified within
three months for all four types of heavy passenger
vehicles, i.e. Medium and High Capacity buses, intra-
urban buses, long distance buses, and special
purpose buses (school buses, sleepers and tourist
buses). For goods vehicles, similar steps would be
initiated in due course. Until the new standards are
notified, all type approvals would be suspended in
Delhi, as per the order of the Delhi High Court
directing that no new purchase orders were to be
made. It was pointed out that the Delhi Transport
Corporation had already invited tenders for 625 new
buses (or modern design). These buses were as per
the new bus code -having a low floor (390 mm floor
height), pneumatic doors, rear engine, tubeless tyres,
low driver seating, and enhanced upward and
downward visibility for driver. The price bid is set to
open on the 5th of February. This is a re-tender,
involving three bidders 'Leyland, Tata, and a Chinese
company. Unlike the existing stock of buses of DTC,
these buses are chassis and body together. The earlier
buses have a body fabricated on a chassis. The new
fleet of buses will be disabled friendly, with place for
two wheelchairs. The Chairman of DTC was
contacted, and he gave details of the new buses to be
purchased. He also undertook to abide by the new
revised bus code if such a code was brought into
operation before the date of manufacture of the newly
ordered buses. The Chairman also stated that 2500
regular drivers were being recruited by DTC. The
conditions of recruitment of these drivers required
them to be 10th pass and a 2 year probation period
was mandated. Thus, the DTC was fully cognizant of
the changes required in bus bodies, and in driver
recruitment practices, and was making a concerted
effort to bring in improved practices. In view of this, a
modification of the direction of the High Court may be
sought to enable purchase of these buses by DTC.
Further, under the current tender, DTC retains the
option to buy additional buses within a specified
period. The purchase of those buses would be as per
the new bus code' as and when it comes into effect.
30. The Government of NCT of Delhi while agreeing with
the above recommendation, has also stated that action for
revision of bus body standards is being taken up by the
concerned ministries and final bid for purchase of 625 low
floor CNG buses has already been opened and further steps
are in progress. Due instructions have been given to the State
Transport Authority and Registration Authorities not to
register buses, which do not have low floor.
31. We are happy to note the information given by the Delhi
Transport Corporation that they had introduced 5 low floor
buses in November, 2005 and one bus was added in
November, 2006. Over a period of more than 2 years, none
of these buses have reported any fatal accident and in fact
they have not met with any accident. Therefore, we direct
that in Delhi, all local buses by whomsoever they are
running under permit or otherwise, shall be low floor buses
and only such vehicles will be registered by the authorities.
This will also be a condition in the permit issued by the
State Transport Authority."
xxx xxx xxx
37. Delhi is a growing city and is a city of international
importance. It is not only desirable but necessary that
various bus-stands and other places including the buses are
disabled-friendly. There was unanimity between the counsel
appearing for different parties as well as the report filed
before us that the bus-stands should be made disabled-
friendly and due provisions should be made for disabled
persons to board the buses without any inconvenience or
difficulty. This is a clear obligation on the part of the State.
All the bus stands should be improved and without
offending any rules, they must be made disabled-friendly
with requisite facilities. The Court on 25.1.2007 had passed
the order in regard to construction of disabled-friendly buses
and bus stops and the relevant portion whereof reads as
under:
Present: Court on its own motion
Mr. Gopal Subramanyam, ASG with Mr. P.Kapur,
amices curiae
Mr. Rajiv Awasthi, Adv.
Mr. M.K. Verma for intervenor
Ms. Avnish Ahlawat for transport DG.
Mr. Ajay Verma for DTC
Ms. Zubeda Begum for R2
Mr. Ankur Jain for State
WP(C) 16565/2006 and 207/2004
We have heard the amices curiae Mr. Gopal Subramanyam,
learned ASG of India. We are happy to note that the matters
have progressed. He may file the proposals which he had
discussed and proposed to various authorities on record
within two days from today and provide copy thereof to the
counsel appearing for different authorities/ organizations.
It is stated that the proposals for the buses with a new
frame/ models to bring the driver seat at a lower level as
well as to ensure that same are easily accessible to a
disabled person, have been accepted by the authorities
concerned but obviously they need some time to finalize the
same. It is in the interest of the Administration that the new
buses are not purchased by any of the Corporations who
are having route permits to run buses for mass-
transportation in Delhi till the next date of hearing which,
in any case, is four days ahead...."
(Emphasis supplied)
37. The above extract shows the considered view of the Delhi
Government and DTC that low floor buses which have a bigger front
screen, are essential to reduce accidents that is from the safety aspect.
It is also noteworthy that learned ASG had referred to change of bus
body and design.
38. In para 30, the Division Bench has noted the submissions of the
Government of NCT of Delhi that "due instructions have been given to
the State Transport Authority and registration authorities not to
register buses which do not have a low floor".
39. In para 31, the Division Bench has clearly directed that "in Delhi
all local buses by whomsoever they are running under permit or
otherwise, shall be low floor buses and only such vehicles will be
registered by the authorities. This will also condition in the permit
issued by the State Transport Authority". The directions in para 39
regarding clearance of roads and parking etc. were to effectuate these
conditions.
40. It is noteworthy that the judgment dated 26th March, 2007 was
not assailed by the Government of NCT of Delhi or the DTC, and has
attained finality and the directions made by the court bind these
authorities as well as the present consideration.
41. It appears that K.R. Mangalam World School filed a Special
Leave Petition, which was registered as Special Leave to Appeal (Civil)
No.7528/2007 entitled K.R. Mangalam v. Union of India & Ors. Some
other petitioners being SLP Nos.7529/2007, 7546/2007, 10090/2007,
10229/2007, 10546/2007, 12089/2008, 18345/2008, 23689/2008 and
2007/2008 were taken up alongwith by the court on 12th August, 2015.
42. SLP(C)Nos.7528/2007 and 7546/2007 were dismissed for default
of appearance.
43. The following order was recorded on 12th August, 2015 in the
SLP(C)No.10090/2007 :
"SLP(C)No.10090/2007:
This Special Leave Petition is filed against the
judgment and order passed by the High Court of Delhi at
New Delhi in Writ Petition (C )No.16565 of 2006, dated
26.03.2007.
At the time of hearing of this Special Leave Petition,
the learned counsel appearing for the petitioner very fairly
brings to our notice the subsequent amendment that has
taken place in the Central Motor Vehicle Rules, 1989 ('the
Rules' for short). The said Rules reads as under :
"2. In the Central Motor Vehicles Rules, 1989
(hereafter referred as the said rules), in rule 125C, for
sub-rule (1), the following shall be substituted,
namely:-
"(1) On and after the 1st day of October, 2014,
the testing and approval for body building of new
models of buses with seating capacity of 13 or more
passengers excluding driver shall be in accordance
with AIR:052 (Revision 1)-2008, as amended from time
to time, for vehicles mentioned therein, till the
correspondent BIS specifications are notified under the
Bureau of Indian Standards Act, 1986 (63 of 1986):"
In view of the aforesaid amendment, the learned
counsel states that, as of now, the relief sought for by the
petitioner does not survive for consideration and decision by
this Court.
Taking note of the statement so made by the learned
counsel, the Special Leave Petition is disposed of as having
become infructuous."
44. SLP(C)Nos.7529/2007, 10229/2007, 23689/2008 and 207/2008
were dismissed as having been rendered infructuous.
45. SLP(C) Nos. 10546/2007, 12089/2008 and 18345/2008, were
delinked from the batch petitions. We have not been informed about
the outcome thereof.
46. In (2016) 7 SCC 761, Jeeja Ghosh & Anr. v. Union of India &
Ors., the Supreme Court has categorically and succinctly highlighted
the fact that the persons with disability must be treated with utmost
dignity.
47. Rajive Raturi, a visually disabled person, a resident of Gurgaon
who works in Delhi with a human rights organization filed a writ
petition being W.P.(C) No. 243/2005 in public interest in the Supreme
Court of India on behalf of differently abled persons seeking proper and
adequate access to public places. In other words, he sought provisions
of all accessibility requirements to make all visually disabled persons in
support of "safe access to roads and transport facilities". The writ
petitioner stated that there were 60-70 million disabled people in India
out of which 50% suffer from visual disability. The fundamental
concern of these persons was accessibility to rights and transport and
safe accessibility to movements on footpaths and accessibility to roads
and transport. The writ petition raised fundamental concerns of
accessibility to the disabled pointing out the internationally acceptable
mandatory components of physical accessibility i.e. the safety,
independence, affordability, logical layout. We extract hereafter the
relevant components :
"a) Safety: the environment must be such where disabled
people can move around safely.
b) Independence: the environment must be such where
disabled persons can use the facilities independently.
c) Affordability: the barrier free or accessible environment
should not come with a premium.
d) Logical layout: the environment must be such where
disabled persons are able to navigate without too much
physical exertion i.e. not having to move to the length and
breadth of the building to access information or make use of
the facilities."
48. This writ petition was decided on 15th December, 2017 along
with W.P.(C)No.228/2006 by a detailed judgment reported at (2018) 2
SCC 413, Rajive Raturi v. Union of India & Ors.
49. In para 4, the court noted that in international human rights law,
equality is founded upon two complementary principles, non-
discrimination and reasonable differentiation. The principle of non-
discrimination seeks to ensure that all persons can equally enjoy and
exercise all their rights and freedoms. Discrimination occurs due to
arbitrary denial of opportunities for equal participation. For example,
when public facilities and services are set on standards out of the reach
of persons with disabilities, it leads to exclusion and denial of rights.
50. In para 6 of Rajive Raturi, the court held as follows :
"6. Two major declarations on the disabled were adopted by
the General Assembly in that decade. First is the declaration
on the rights of mentally retarded persons dated 20-12-1971
which provided that the mentally retarded person should
enjoy the same rights as other human beings, including the
right to proper medical care, economic security, the right to
training and rehabilitation, and the right to live with his own
family or with foster parents. Furthermore, the Assembly
declared that there should be proper legal safeguards to
protect the mentally retarded person against every form of
abuse if it should become necessary to restrict or deny his or
her rights. In 1975, the General Assembly of the UN
adopted the Declaration on the Rights of Disabled Persons,
which proclaimed that "disabled persons have the same
civil and political rights as other human beings". The
Declaration states, "Disabled persons should receive equal
treatment and services, which will enable them to develop
their capabilities and skills to the maximum and will hasten
the process of their social integration or reintegration."
This Declaration is a comprehensive instrument with a
clear focus on the rights of persons with disabilities.
Thereafter, the year 1981 was observed as International
Year of the Disabled Persons with its central theme as "Full
Participation and Equality"."
(Emphasis by us)
51. Further in para 7 of Rajive Raturi, the court held as follows :
"7. In the very next year the UN General Assembly adopted
the World Programme of Action which placed "Equalisation
of Opportunities" as a central theme. The Committee on
Economic, Social and Cultural Rights under International
Covenant on Economic Social and Cultural Rights (ICESCR)
in 1994 assumed the responsibility for disability rights by
issuing a General Comment No. 5, in which the Committee
makes an analysis of disability as a human rights issue.
Article 6 of the Covenant emphasises "right to work"; Article
7 refers to "the right of everyone to the enjoyment of just and
favourable conditions of work which ensures adequate
remuneration"; Article 11 recognises that everyone has the
"right to an adequate standard of living for himself and his
family, including adequate food, clothing and housing";
Article 15 recognises the "right of everyone to take part in
cultural life"."
52. In this judgment, the Supreme Court has noted that adequate
access to all facilities on the road as well as convenient access to the
transport facilities etc. is a right which flows from various international
covenants to which India is a signatory.
53. In para 10 of the judgment, the Supreme Court notes that without
these facilities, "movement of such persons gets impaired and this can
even be treated as infringement of their fundamental rights under
Article 19(1)(c) of the Constitution, which is guaranteed to each and
every citizen of this country". It was held that right to live with dignity
is an essential facet of right to life guaranteed under Article 21 of the
Constitution. The Supreme Court further noted that the right to live
with dignity to every citizen is guaranteed under Article under 21 of the
Constitution of India. Ensuring these rights needs a "higher number of
compensative skill enhancing facilities in order to go about their daily
lives without suffering the indignity of being generally perceived as
being dependant and helpless."
54. In the section titled "Duty of the State", in Rajive Raturi, the
Supreme Court has elaborated that "there are adequate provisions
which cast an obligation on the State also to make provisions for
safeguarding the interest of the handicapped persons". Expounding on
the 73rd and 74th Amendment to the Constitution, reference is made to
Article 41 of the Constitution, which is in the nature of a directive
principle, which imposes a duty on the State to make an effective
provision, inter alia, for public assistance to disabled persons.
55. In Rajive Raturi, the Supreme Court had also noted the
enunciation of principle laid down in (1986) 2 SCC 68, State of H.P. v.
Umed Ram Sharma to the effect that the right to life under Article 21
has been broad enough to incorporate the right to accessibility (para
10). In this case, the court was considering and had observed that the
Right to Life under Article 21 embraces not only physical existence of
life but the quality of life and for residents of hilly areas, access to road
is access to life itself.
56. The petitioner before us seeks something even more basic which
is access to public transport to the disabled.
57. In para 22 of Rajive Raturi, the Supreme Court has noted the
provisions under the Rights of Persons with Disabilities Act, 2016 (as
well as the earlier enactment i.e. the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995)
wherein these laws seek to provide access to public places in the
following ways :
"22. The provisions of the Disabilities Act, 1995 and the
Disabilities Act, 2016 have already been taken note of. These
provisions emphasise the importance of providing non-
discriminatory access by removing all physical barriers. More
specifically, they seek to provide access to public places in the
following ways:
22.1. Suitably altering buses, airplanes, train compartments
and vessels to make them accessible to persons with disabilities;
22.2. Adapting toilets in these aforementioned vehicles and
waiting rooms to make them accessible, especially for
wheelchair users;
22.3. Installing auditory feedback in traffic signals for the
benefit of the visually impaired;
22.4. Making necessary curb cuts and slopes in pavements
for wheelchair users;
22.5. Engraving the surface of zebra crossings for the
visually impaired;
22.6. Engraving the edges of railway platforms for the benefit
of the visually impaired;
22.7. Designing appropriate symbols of disability (for
identification of reserved parking spaces, etc.);
22.8. Providing warning signals at necessary places;
22.9. Building ramps in all public places;
22.10. Providing auditory feedback in lifts; and
22.11. Providing ramps in all healthcare facilities including,
inter alia, hospitals and rehabilitation centres."
58. Mr. Jai Dehadrai, ld. counsel for the petitioner as well as ld.
counsel for the respondents have drawn our attention to certain portion
of the above judgment which may usefully be extracted hereunder :
"The Present case
25. Having regard to the aforesaid constitutional and
statutory scheme, there is no denial of the fact that visually
impaired persons need to be provided proper and safe access
to roads and transport as well as to buildings, public places,
etc. We may, therefore, emphasise that the prayers made in
the present petition cannot be viewed as adversarial in
nature. We find comfort in the fact that it is not regarded so
by the respondents as well, particularly the Union of India.
In fact, the manner in which the present case has proceeded
would reflect the commitment of the Central Government in
taking care about the aforesaid needs of the visually disabled
persons. It is for this reason the Union of India has been
filing status reports from time to time in the form of affidavits
by bringing on record the various measures which the
Government has taken for fulfilling its constitutional and
statutory obligations in this behalf. This petition was filed in
the year 2005 and the various measures taken by the
Government have been monitored in the last 12 years. It may
not be necessary to refer to various status reports filed by the
Government depicting the steps which are taken by it, as that
would unnecessarily burden the present judgment. As was
rightly stated by Mr Ranjit Kumar, learned Solicitor General
who appeared on behalf of the Union of India, that it is a
"work in progress" and the Union of India has been taking
various measures to make the lives of such disabled persons
as comfortable as possible.
26. Thus, instead of reproducing those steps which are taken
by the Government from time to time, we would like to
confine the discussion by referring to affidavit dated 30-6-
2017 filed by the petitioner in response to the status report
filed by the Union of India on 12-4-2017. In this affidavit, the
petitioner has tabulated his remarks and comments to the
said status report and the direction which it seeks from this
Court. Therefore, this affidavit depicts what remains to be
done at the end of the respondents. It may be pointed out that
the affidavit which was filed by the Union of India on 12-4-
2017 was in response to the ten action points which were
submitted by the petitioner. In the said affidavit, the Union of
India gave its updated status on those points in the following
manner:
"Sl.No Targets set Petitioner's remarks Action taken
under AIC
xxx xxx xxx
7. 10% of No standards and Ministry of Road,
Government guidelines at Transport and
owned present are Highways has
public available to make issued instructions
transport Government owned to the States and
carriers are public transport Executive Director
to be made carriers accessible. of organisations of
fully State undertakings
accessible to ensure that 10%
by March of Government
2018. owned Public
Transport is made
fully accessible to
the PWDs by
March 2018.
xxx xxx xxx"
59. It was proposed by the government that the Ministry of Road
Transport and Highways issued instructions to State and Executive
Directors of organizations to ensure that 10% of public transport is
made fully accessible by March, 2018. In this regard, Government of
India was adverting to targets set under AIC.
60. On this submission, the Supreme Court has noted the following
comments of the petitioner in para 32 of the judgment which is as
follows :
"Sl.No. Petitioner's comments to the UoI response dated 23-8-
xxx xxx xxx
7. It may be noted that Section 41 of the 2016 Act
provides for comprehensive accessibility in all modes
of transport including but not limited to bus
transport. Read with Section 46 and Rule 15 of the
2017 Rules, the UoI and the States are to ensure that
all public transport systems including transport
carriers and roads are made fully accessible by June
2019 in accordance with the Harmonised Guidelines.
Therefore, the petitioner reiterates the directions
sought for with regard to this target.
xxx xxx xxx"
61. The court then summed up the points as follows :
"33. From the foregoing discussion, the following pertinent
aspects can be discerned:
33.1. Ten action points which are enumerated by the
petitioner, for providing proper access to public facilities to the
persons suffering from visual disability, are now statutorily
recognised under the Disabilities Act, 2016. To put it straight,
the legislature has cast a duty on the executive wing for making
provisions in this behalf. This legal position is accepted by the
Union of India in its affidavit dated 23-8-2017. In this affidavit,
the respondent had itself mentioned various provisions under the
Disabilities Act, 2016 which mandate the respondents to make
provisions for these facilities. Not only this, such provisions even
specified the deadlines for undertaking these measures. Thus, it
becomes a statutory obligation on the part of the Central
Government as well as the State Governments to do the needful
by the target dates.
33.2. Though, the Central Government has taken various
measures, many State Governments have not responded at all.
33.3. In Justice Sunanda Bhandare Foundation cases [Ed.:
The reference is to Justice Sunanda Bhandare
Foundation v. Union of India, (2014) 14 SCC 383 : (2015) 3
SCC (L&S) 470; Justice Sunanda Bhandare
Foundation v. Union of India, (2015) 17 SCC 37 : (2015) 3 SCC
(L&S) 192; Justice Sunanda Bhandare Foundation v. Union of
India, (2017) 5 SCC 131 : (2017) 2 SCC (L&S) 50] as well, this
Court has given various directions from time to time. In its order
dated 25-4-2017 [Justice Sunanda Bhandare
Foundation v. Union of India, (2017) 14 SCC 1 : (2018) 1 SCC
(L&S) 130 : (2017) 5 Scale 288] , the States as well as Union
Territories are directed to comply with the provisions of the
Disabilities Act, 2016 and to report to the Court about the
progress made by them in this behalf. The Court is, thus,
monitoring the progress in this behalf in the said writ petition."
So far as point no.7 relating to public transport as enumerated by
the Government is concerned, by the judgment dated 15 th December,
2017, the operative directions of the Supreme Court are to be found
from para 34 onwards rejecting the Government contention no.7 that
only 10% of Government owned public transport carriers are to be
made fully accessible by March, 2018. The Supreme Court made the
following directions in para 34.7:
"34. Having regard to the aforesaid position emerging on
record, we dispose of these petitions with the following
directions:
xxx xxx xxx
34.7. Here again, Section 41 of the Disabilities Act, 2016
provides for comprehensive accessibility in all modes of
transport including but not limited to the bus transport.
Therefore, it becomes the duty of the Union, States as well as
Union Territories to ensure that all government buses are
disabled friendly in accordance with the Harmonised
Guidelines. Likewise, the respondents are duty-bound to see
that private buses also become disabled friendly. Thus, we
direct the Government to lay down the plan giving the dates by
which the aforesaid task shall be undertaken, keeping in view
the directions which are sought by the petitioner in this behalf
and the same shall be filed within three months."
(Emphasis by us)
62. We may note further that the Supreme Court issued directions to
the Bureau of Indian Standards so far as Harmonised Guidelines and
Space Standards for Barrier Free Built Environment for Persons With
Disabilities and Elderly Persons was concerned :
"(ix) Bureau of Indian Standards to embed disability aspect in
all relevant parts of revised National Building Code
34.9. It is expected that the respondents would regularly
update the Harmonised Guidelines keeping in view the
provisions of the Disabilities Act, 2016 and technological
advancement vis-à-vis the needs of persons with disabilities."
63. Thus the Supreme Court has visualised and anticipated
technological advancement and noted that even the Harmonised
Guidelines would need regular updation in light thereof.
64. In W.P.(C)No.5666/2017, Court on its Own Motion v. Union of
India & Ors. a decision of this court reported at 2017 SCC OnLine Del
9968, it was observed as under :
"24. The significance attached in the Constitution, to non-
discrimination and equality, is evident from the fact that
Article 14 incorporates both expressions - "equality before
the law" as well as "equal protection of laws". The same is
more positively and affirmatively recognized in Articles 15
to 18 of the Constitution of India. Article 15, in fact, attempts
to eradicate discrimination against the citizens on the ground
of religion, race, caste, sex and place of birth or any of them.
Clause (3) of Article 15 prevents the State from making any
special provision for women and children.
25. In consonance with right guaranteed by Article 14,
Article 16 also provides equality of opportunity in matters of
public employment. Articles 16(1) and (2) of the Constitution
give effect to the equality before law guaranteed by Article
14 and to the prohibition guaranteed by Article 15(1) which
is not relevant for the present consideration.
xxx xxx xxx
31. Despite the Constitutional guarantee by Article 14 of
equality before law and equal protection of the laws, it is a
harsh reality that substantive equality has not been ensured
to such disabled persons.
xxx xxx xxx
41. It is noteworthy that the preamble to the Rights of
Persons with Disabilities Act, 2016 ("Act of 2016" hereafter)
extracts the above principles laid down by the United Nations
Convention; notes that India is a signatory to the
Convention; that it has ratified the same on 1 st October, 2007
and that the legislation was a step towards implementation of
the United Nations Convention.
xxx xxx xxx
45. The statute therefore, specifically recognizes the
entitlement of persons with disability to equal opportunity to
personal mobility and casts an obligation upon the State to
provide such facilities for persons with disabilities at railway
stations to ensure such accessibility standards to all modes
of transport as would provide a level playing field to the
disabled so far as transport is concerned."
(Emphasis by us)
We have noted these directions only to point out the high
pedestal on which the aspect of regulation of traffic in the context of
right to life of the citizens under Article 21 of the Constitution of India
stands placed by the Supreme Court.
Rule 15 of Rights of Persons with Disability Rules, 2017 and AIS 052
(Rev.1)-2008 - Whether binding?
65. Mr. Dhruv Mehta, Senior Counsel, appearing for the Delhi
Transport Corporation, has drawn our attention to the rule making
powers and the requirements under the Motor Vehicles Act.
66. Ld. Senior Counsel for the DTC draws our attention to Rules
framed on 15th June, 2017 captioned "Rights of Persons with Disability
Rules, 2017" published as required, under Section 100 of the Rights of
Persons with Disabilities Act, 2016 (Act No.49 of 2016). The Rules
contain Chapter VI titled "Accessibility". Rule 15 thereof reads as
follows :
"15. Rules for Accessibility.- (1) Every establishment shall
comply with the following standards relating to physical
environment, transport and information and communication
technology, namely :-
(a ) standard for public buildings as specified in the
Harmonised Guidelines and Space Standards for
Barrier Free Built Environment for Persons With
Disabilities and Elderly Persons as issued by the
Government of India, Ministry of Urban Development in
March, 2016;
(b) standard for Bus Body Code for transportation
system as specified in the notification of the Government
of India in the Ministry of Road Transport and
Highways, vide number G.S.R. 895(E), dated the 20th
September, 2016;
(c) Information and Communication Technology-
(i) website standard as specified in the guidelines
for Indian Government websites, as adopted by
Department of Administrative Reforms and Public
Grievances, Government of India;
(ii) documents to be placed on websites shall be in
Electronic Publication (ePUB) or Optical
Character Reader (OCR) based pdf format:
Provided that the standard of accessibility in respect of
other services and facilities shall be specified by the
Central Government within a period of six months from
the date of notification of these rules.
(2) The respective Ministries and Departments shall ensure
compliance of the standards of accessibility specified under
this rule through the concerned domain regulators or
otherwise."
(Emphasis supplied)
67. Sub-rule 15(b) above captioned "Standard for bus body for
transportation system" requires that the "bus body" has to be as
specified in the notification of Government of India in the Ministry of
Transport vide No.GSR 895(E).
68. We may extract the relevant portion of GSR 895(E) dated 20th
September, 2016 which reads as follows :
"xxx xxx xxx
NOW, THEREFORE, in exercise of the powers conferred by
sub-section (1) of section 110 of the Motor Vehicles Act,
1988 (59 of 1988), the Central Government hereby makes the
following rules further to amend the Central Motor Vehicles
Rules, 1989, namely:-
1. (1) These rules may be called the Central Motor
Vehicles (Twelfth Amendment) Rules, 2016.
(2) They shall come into force on the date of their
publication in the Official Gazette.
2. In the Central Motor Vehicles Rules, 1989, in rule
125C, in sub-rule (1), for the proviso, the following shall be
substituted, namely:-
"Provided that the provision of this rule shall be
implemented in two phases.
In first phase, the provisions of AIS 052(Rev.1) - 2008,
excluding the parameters and requirements given in Table-
1 below, shall be applicable on and after 1st day of January,
2017.
In second phase, the provisions of AIS-052(Rev.1) - 2008,
as amended from time to time, and the parameters and
requirements given in (Table-I) below, shall be applicable
on and after 1st day of January, 2018.
xxx xxx xxx"
(Emphasis supplied)
Therefore, GSR 895(E), actually seeks to amend Rule 125C of
the Central Motor Vehicles Rules, 1989 to substitute the proviso.
69. It becomes necessary to examine proviso to 125C of the Central
Motor Vehicles Rules, 1989. We find that Rule 125C of the Central
Motor Vehicles Rules, 1989 incorporates AIS:052 (Revision 1), 2008.
70. Mr. Dhruv Mehta, ld. Senior Counsel has placed reliance on the
Automotive Industry Standards (AIS) captioned "Code of Practice for
Bus Body Design and Approval by the Automotive Standards
Committee" which have been framed under the Central Motor Vehicles
Rules, 1989 by the Technical Standing Committee set up by the
Ministry of Shipping, Road Transport and Highways.
71. Mr. Dhruv Mehta has drawn our attention to the following extract
of AIS:052 (Revision 1) 2008 :
"CHAPTER : 2
GENERAL REQUIREMENTS OF BUS BODY DESIGN
xxx xxx xxx
2.2.5 Steps
2.2.5.1 Dimensions of Steps in mm shall be as given in
the table below:
Classes I II, II
First step from Max. height 340 (1) 380
ground 'D' (mm) (1)(2)(5)
Min. depth (mm) 300 */
Other steps 'E' Max. height 250 (3) 350 (4)
(mm)
(mm)
xxx xxx xxx
2.2.19 Provisions for Disabled Passengers 2.2.19.1 All Type I
buses shall have at least two passenger seats in case of Mini &
Midi buses and four passenger seats in case of other buses
designated as priority seats for persons with disabilities. These
seats shall be only of the forward facing type and preferably be
located behind the driver's seat.
xxx xxx xxx
2.2.19.3 The priority seats shall be provided with appropriate
facility for securing the crutches, canes, walkers etc. to
facilitate convenient travel for persons with disabilities.
xxx xxx xxx
Classes I II, II
First step from Max. height 340 380 (1)(2)(5)
ground 'D' (mm) (1)
Min. depth (mm) 300 */
Other steps 'E' Max. height (mm) 250 350 (4)
(Emphasis supplied)
The submission is that the DTC buses have to be complaint with
the above stipulation. Emphasis has been laid by Mr. Mehta on the
requirement of steps in the bus design to contend that as per AIS:052
(Revision 1)-2008, the buses have to have 'steps' and therefore, have to
be standard floor buses.
We shall consider this submission in a later part of this order.
Compliance of above orders
72. So what does the record of the present case show with regard to
any steps taken by the authorities in Delhi towards compliance of the
above orders and directions? Have they taken a single step towards
complying with the law?
73. It is a shocking state of affairs that the directions of the Supreme
Court have been flouted with impunity by the Govt of NCT of Delhi.
This timelines have not been adhered to till date. No extension of time
appears to have been sought by the Delhi Government.
74. We may note that so far as the Delhi is concerned, state public
transport includes buses, railways, metro rail, etc. In the present case,
we are confining ourselves to the consideration of buses as means of
public transport. So far as buses are concerned, we are informed that
the same are maintained by the Delhi Transport Corporation, a statutory
corporation constituted under the provision of the Delhi Road Transport
Authority, 1950. In addition, the Government of Delhi is maintaining a
cluster scheme, wherein tenders are invited with regard to specified bus
routes from private bus operators.
75. The present matter is of seminal importance inasmuch as it raises
issues of complete exclusion of persons with physical disabilities on
account of the barriers posed by the existing public transport system
despite international instrument including the convention of the rights
of the Disabled of 2006; Beijing Declaration of 1992; the statutory
recognition of the rights of the disabled upon enactment of the Rights of
Persons with Disabilities Act, 2016 as well as the repeated
pronouncements on the subject.
76. The directions of this court as well as the Supreme Court are
clear, unequivocal and absolute. The directions have been made after
fully considering the entire legislative scheme and brook no exception
at all. It is noteworthy that the directions of the Supreme Court of the
responsibility to ensure that the buses are accessible to the disabled and
are not restricted to State Transport, but extend to private buses as well.
The government has been directed to lay down a plan by which the
aforesaid task would be undertaken.
77. These directions bind the Government of NCT of Delhi. The
Delhi Transport Corporation which is a statutory corporation in Delhi,
is also bound by the directions made by the Supreme Court in para 34.7
of Rajive Raturi.
78. Even as late as on 15th December, 2017, the Supreme Court of
India has unequivocally directed the respondents to ensure compliance
with the Harmonious Guidelines and Special Standards enabling access
to public transport to the specially abled.
79. Given the above extraction, it is clear that the directions made by
the Supreme Court on (1996) 6 SCC 63, M.C. Mehta v. Union of India
& Ors. bind the authorities so far as environmental concerns are
concerned. The imperative directions made by the court in 139 (2007)
DLT 244 : 2007 (96) DRJ 580, Court on its motion v. Union of India
& Ors. passed on the 26th of March 2007, highlighting public safety
concerns mandates that only low floor buses can be purchased by the
Government of NCT of Delhi. There is an additional direction that only
low floor buses can be registered by the Registering Authority. Clearly,
acquisition of any buses other than low floor buses would be contrary to
the directions made in the above judgements.
80. On 26th March, 2007, the respondents have also conceded before
this court that only low floor buses ought to be purchased from the
safety point of view. This is an important reason for the Government to
purchase only the low Floor buses. The Supreme Court has noted that
safety of the road using public is paramount.
81. It is important to note that so far as the "Code of Practice for Bus
Body Design and Approval by the Automotive Standards Committee" is
concerned, the same stand prescribed in August, 2008, eight years
before the Rights of Persons with Disability Rules, 2016 was enacted.
82. Section 41 of the Act of 2016 unequivocally mandates upon the
appropriate government ("shall take suitable measures to provide") to
ensure access to all modes of transport for persons with disabilities.
Clause (b) of sub-section 1 of Section 41 mandates that the government
shall take measures to not only conform the design standards, but also
to take steps for "retrofitting of modes of transport".
83. Section 41(1)(a) enjoins upon the appropriate government to
ensure facilities at bus stops, railway stations and airport conforming to
accessibility standards relating to parking spaces, toilets, ticketing
counters and taking measures. We further find that the vision of the
Legislature in requiring the appropriate government to mandatorily take
steps to provide "accessibility roads to address mobility necessary for
persons with disabilities".
84. It is astonishing that despite the mandate of the United Nations
Convention for Rights of the Persons With Disabilities, 2006; and the
binding provisions of the Rights of Persons With Disabilities Act, 2016,
the DTC can actually seek to avoid its responsibility placing reliance
upon the Code of Practice for Bus Body Design and Approval by the
Automotive Standards Committee, as contained in AIS:052 (Revision
1), 2008 and insist that it is permissible to induct standard floor buses
into its fleet contending that the buses must have the steps as are
provided in the bus design.
85. We put it to Mr. Dhruv Mehta, learned Senior Counsel for DTC
and Mr. Sanjoy Ghose, ASC-GNCTD as to how persons using
"crutches, canes, walkers" and wheelchairs would climb the bus steps.
The response was obvious - that they would not be able to do so.
86. It is to be noted that given the steep improvement in the age
expectation, India has a large geriatric population. Furthermore, there
are several people with medical problems in their limbs, especially
knees, who face mobility difficulties. The standard floor buses with
steps, impede mobility and exclude all of these persons from access to
public transport. A violation of their Constitutional right and assurance
under the statute of 2016.
87. Our attention is drawn by Ms. Preeti Singh, petitioner no. 2-
another person in a wheel chair, who is present in person in court, to the
daily violation of her rights. Ms. Singh submits that she suffers sexual
violence and harassment each time she seeks to board standard floor
buses (which admittedly form the greater part of the public transport
system) inasmuch as she is compelled to request strange men to assist
her in boarding and de-boarding from public buses.
88. AIS:052 (Revision 1), 2008 therefore, so far as it provides for
steps bus design and standard floors and therefore, provides barriers to
accessing public transport to the disabled are violative of the rights
ensured under Section 41 of the Rights of Persons With Disabilities
Act, 2016, and cannot be given effect to under any circumstances.
89. It is well settled that delegated legislation has to be in furtherance
of the object and purpose of the enactment. No delegated legislation or
Rule in purported exercise of power conferred by an enactment can
stand which denies rights specially conferred under the main statute.
Rule 15 of the Rights of Persons with Disability Rules, 2017, to the
extent in relies on AIS:052 (Revision 1), 2008 which permits the
transport authorities to acquire such public transport which is not
accessible by the disabled, prima facie cannot stand. We shall, after
hearing the parties take a final view in the matter.
90. It is also well settled that so far as the provisions of the Motor
Vehicles Act are concerned, the same is a general enactment.
91. It needs no elaboration that special statutory provisions with
regard to specified classes of persons would prevail over any general
enactment which overlaps on the subject matter. It cannot be contended
or denied that the provisions of the Rights of Persons With Disabilities
Act, 2016 is a special enactment concerned exclusively with the rights
of the disabled ensuring empowerment of the disabled by promising
equality and removal of discrimination in the spirit of the United
Nations Conventions on the Rights of the Disabled and would override
the provisions of any overlapping provision as contained in any general
law such as the Motor Vehicles Act as well as rules and orders framed
thereunder.
Acquisition of buses in Delhi
92. The respondents have stated that between the years 2007-11,
DTC inducted 3,775 (2,500 non-AC and 1275 AC) low floor buses
(page 154) from funds provided by the GNCTD.
93. Subsequent Cabinet Decisions regarding procurement of new
buses and action taken by the DTC for augmentation of its bus fleet are
detailed in a status report which reads as follows (page 155):
S.No. Cabinet Decision Decision Action Taken by DTC
No. & Date
1. 1933, 17.09.2012 625 Non-AC Low Tender floated by DTC
Floor CNG buses on 20.03.2013 for 500
with AMC Non-AC and 125 AC
Low Floor buses.
Single bid was
received for 500 Non-
AC and no bid was
received for 125 AC
buses. The cost of the
Non-AC bus and AMC
charges were
unrealistic,
exorbitantly high,
unreasonable &
unjustifiable. Tender
was, therefore,
scrapped.
2. 1946, 22.10.2012 1100 Standard The specifications of
floor height (900 the buses viz-a-viz
mm) CNG buses JNNURM could not be
with AMC finalized and the
matter was again put
up to Council of
Ministers.
3. 2086, 03.10.2013 1380 Non-AC Tenders were floated
Standard Floor on 04.10.2013 for
(900 mm) CNG 1380 Standard Floor
buses with AMC and 345 Low Floor
and 345 AC Low Premium Segment
Floor (400 mm) buses. Single bid was
Premium Segment received for standard
with AMC floor buses. No bid
was received for
Premium Segment.
Tender was foreclosed
due to conditional
Techno-Commercial
Bid of single bidder in
respect of 1380
Standard Floor Buses,
as such, Price Bid was
not opened.
Tender was again
floated on 30.06.2014
for 1380 standard (900
mm) floor height Non-
AC buses. Single bid
was received. The cost
of the bus and the
AMC charges were
still high. Tender was
foreclosed on
23.04.2015.
94. The above narration set out that, after 2008, only a single tender
that too as back as on 17th September, 2012 has been floated for
acquisition of 625 non AC low floor buses. The respondents have made
no effort at all to comport to the requirement of law.
95. So far as total fleet of DTC and cluster buses is concerned, the
respondent no.4 has explained that total fleet of DTC and cluster buses
is about 5,400 out of which 3,781 buses is low floor (disabled friendly).
96. The respondent no.4 calculates that with the procurement of
another 2,000 buses, the bus fleet would be 7,400 buses. It is submitted
that keeping in view the Government of India guidelines, only 10% of
the buses have to be low floor buses which would mean only 740 buses,
which is much lower than the low floor buses (3,781) owned by the
Government, at present.
Proceedings in these writ petitions
97. In these writ petitions, as back as on 14 th November, 2017, we
had noted these critical aspects of the matter. The matter was thereafter
listed on 23rd November, 2017 when, for not acquiring the low floor
buses the excuse of want of land for setting up bus depots was
propounded. Interestingly, not a single request for seeking land from
any land owning agency was placed before us.
98. Yet another excuse has been set up before in the affidavit dated
11th December, 2017, which was filed by the respondent no.4 -
Transport Department under the signatures of Mr. Subodh Kumar, who
was posted as Deputy Commissioner, Department of Transport with the
Government of NCT of Delhi. We noted this excuse in our order dated
13th December, 2017 the relevant portion thereof reads as follows :
"4. An affidavit dated 11th December, 2017 has been filed
by the respondent no.4 under the signatures of Mr. Subodh
Kumar posted as Deputy Commissioner, Department of
Transport with the Government of NCT of Delhi. This
affidavit refers to tenders issued in 2006; March, 2013; 4 th
October, 2013 and 30th June, 2014 for low floor buses. The
affidavit states that at each time a singular bid was
submitted by M/s Tata Motors Ltd. which was not accepted
that the prices quoted were "unrealistic, exhorbitantly high,
unreasonable and unjustifiable rates for buses and AMC
charges". The affidavit discloses no basis for such an
assessment or evaluation. The Govt. of NCT of Delhi also
does not make reference to any other manufacturer of
buses who would be in a position to supply low floor
buses."
(Emphasis by us)
99. We were orally informed by Ms. Avnish Ahlawat, ld. counsel for
the DTC that pursuant to the steps taken for acquisition of low floor
buses in 2008, M/s Ashok Leyland had tendered and supplied low floor
buses.
100. Interestingly, in para 7 of our order dated 13th of December 2017,
we had noted the following consensus amongst all parties including
GNCTD and DTC which were present in court :
"7. All parties who are present as well as the experts
appointed by us agree that it is essential to have low floor
buses to improve air quality and to ensure mobility to the
disabled persons."
101. On this date, a request was made by Mr. Jai Dehadrai, ld. counsel
for the petitioner that having regard to the seriousness of the matter,
emergency measures were needed to be undertaken not only for
ensuring facilities to the specially abled passengers but also the impact
of lack of public transport on the environment and the pollution levels
in the city. On his request, M/s Tata Motors Ltd. and M/s Ashok
Leyland were impleaded as party respondent nos.9 and 10.
102. On 20th December, 2017, we were informed by Mr. Vikas Singh,
Senior Counsel, who appeared for applicant in CM Nos.46635-36/2017
that given the amendments in the norms of the Master Plan for Delhi -
2021 as well as policy regarding construction on parking units for
buses, as on date the respondent no.1 stands permitted to construct
multilevel parking for its buses.
103. In this background, we had on 20th December, 2017 directed as
follows :
"4. The respondent no.1 shall submit a report as to the
steps being initiated with regard to construction of parking
units for buses. The respondent no.1 shall also consider the
aspect of multilevel parking units for buses which is
permissible under the new Master Plan for Delhi - 2021
norms and place the same before the next date of hearing."
(Emphasis by us)
104. We are yet to get the report in terms of the above direction.
105. M/s Tata Motors Ltd. - respondent no.9 and M/s Ashok Leyland
- respondent no.10 had appeared in the proceedings on the 31st January,
2018. M/s Tata Motors Ltd. on that day made the following
submissions :
"2. Mr. Darpan Wadhwa, ld. Senior Counsel appearing
for M/s Tata Motors Ltd. informs us that there is no
difficulty in the respondent no.9 supply the low floor buses
to the Govt. of NCT of Delhi. Mr. Wadhwa points out that
it is the Govt. of NCT of Delhi which has not invited tenders
for low floor buses since 2014.
3. Mr. Wadhwa informs us that with regard to the
supplies of buses effected by the respondent no.9 to the
GNCTD, payments are owed by the Govt. of NCT of Delhi
to M/s Tata Motors Ltd. We are told that in the arbitral
proceedings between the parties, there is arbitral award
dated 16th August, 2017 in favour of respondent no.9 and
that GNCTD has a liability of over Rs.300 crores towards it.
4. Mr. N.K. Singh, Advocate representing Ms. Avnish
Ahlawat, ld. counsel for the DTC informs us that the said
arbitral award dated 16th August, 2017 stands challenged
by way of a petition under Section 34 of the Arbitration and
Conciliation Act, 1996."
(Emphasis by us)
106. So far as M/s Ashok Leyland is concerned, on 31 st January, 2018
it had through its counsel informed us as follows :
"6. Mr. Sandeep Narain, ld. counsel for the respondent
no.10-M/s Ashok Leyland Ltd. submits that the payments
for the buses supplied by it for the year 2008 are still
pending. He submits that in so far this company is
concerned, claims to the tune of Rs.393 crores have been
made before the Arbitrator against the Delhi Government.
7. We are further informed by these companies that the
terms on which the bids are invited by the official
respondents are extremely arbitrary, unrealistic and
unfavourable to the companies discouraging manufacturers
from participating in the tenders."
(Emphasis supplied)
107. So far as parking lots were concerned, on the next date of hearing
i.e. 31st January, 2018, Mr. Abhishek Bharti, ld. counsel, who appeared
for the petitioner no.3 had informed us as follows :
"8. On the difficulty expressed by the Govt. of NCT of
Delhi for procurement of buses being is non-availability of
land for bus parking, our attention has been drawn by Mr.
Abhishek Bharti, ld. counsel for the petitioner no.3 to a
report dated 17th May, 2016, which stands submitted by the
Environment Pollution (Prevention & Control) Authority
for Delhi and NCR, has considered the land requirement
for bus depots for augmentation of the bus fleet in NCT of
Delhi. Mr. Bharti has placed the detailed consideration in
this Report of land availability with Delhi Government
which would meet the current as well as future requirement
for bus depots. This Report has incisively considered this
important aspect of the matter."
(Emphasis by us)
108. On this submission, we had directed the Government of NCT of
Delhi as follows :
"9. The Govt. of NCT of Delhi deserves to consider the
recommendations made in the report dated 17 th May, 2016
of the Environment Pollution (Prevention & Control)
Authority for Delhi and NCR inter alia on the issue of land
requirement for depots for augmentation of bus fleet in
NCT."
(Emphasis by us)
109. It is an unfortunate state that till date we have not been told
about the outcome of consideration of the report.
110. Keeping in view of the importance of the issues in the writ
petition and the contentions expressed by the respondents, we had on
31st January, 2018 further made the following directions :
"10. In view of the above, we see no reason as to why the
official respondents cannot make efforts to acquire low
floor buses to the city of Delhi, especially in view of the
clear directions given by this Court by the order dated 26 th
March, 2007 in W.P.(C) No.16565/2006, Courts on its
Motion vs. Union of India & Ors.
11. The complaint made in this writ petition is of a serious
nature inasmuch as it enables inclusivity to the disabled and
the elderly population of the city.
We, therefore, call upon M/s. Tata Motors Ltd. and
M/s. Ashok Leyland Ltd. to file affidavits placing on record
the factual situation regarding supply of low floor buses in
the past as also their willingness to participate in tendering
process for acquisition of low floor buses, if commenced
by the official respondents.
Such affidavits shall be filed within two days from
today.
12. On 20th December, 2017, we asked the respondent no.1
to submit a report with regard to the steps which were being
taken for construction of multi-level parking units for
buses permissible under the new Master Plan for Delhi -
2021 norms.
An affidavit in this regard is stated to have been filed
which is not forthcoming on record. Let the same be traced
out and bought on record."
(Emphasis supplied)
111. On the 7th February 2018, we had noted as follows :
"2. Prima facie, it would appear that the respondent no.1
has failed to comply with the judgment of the Supreme
Court reported at (1998) 6SCC 63 M.C. Mehta v. UOI and
the judgment of this court dated 26th March, 2007 in W.P.(C)
16565/2006 Court on Its Own Motion v. UOI."
(Emphasis supplied)
112. On these observations, we may usefully extract the submissions
on behalf of the Government of NCT of Delhi made before us on 7 th
February, 2018 and our specific directions :
"3. Mr. Anand Grover, learned Senior Counsel who
appears for the Govt. of NCT of Delhi submits, on
instructions, that the respondent no.1 has no intention of
not abiding by any of the judgments and orders of the court.
He submits that given the bids which were received for low
floor buses, the respondent no.1 has taken a view that the
expenditure entailed for acquisition of standard low floor
buses is not feasible and the respondent no.1 has taken a
considered view to acquire electrical buses which would
comport with the directions made by the court. Mr. Grover
submits that he shall file an affidavit setting out the
timeline within which such buses would be acquired. Let
the affidavit with regard to the timeline within which the
respondent no.1 would acquire the low floor buses, be filed
within 10 days from today.
4. An issue with regard to the position of the Government
regarding the nature of the parking lots; design of the
parking lots, whether it is to be multi-level; if so, then of how
many levels etc has been hanging in this court for several
dates now. None of the respondents are in a position to
inform this court of even the finalisation of a design, let
alone the timelines within which such parking lots would be
constructed.
5. At the same time, we are being told that tenders have
been issued for procuring thousands of buses. It is not
understandable by this court as to what would be the fate of
the buses, if they were actually acquired by the Government
and more specifically, where they would be parked given
the excuse of lack of parking space which is propounded
before us.
6. In view of the above, we direct Mr. Anshu Prakash,
Chief Secretary of Delhi to forthwith convene a meeting of
the concerned officials at the highest level and place an
action plan regarding the procurement of buses; design of
the parking lots; and the timeline within which the parking
lots would be constructed as well as the exact location
thereof. Such affidavit shall be filed within 10 days from
today."
(Emphasis by us)
113. Needless to say that these directions have not been complied with
till date.
114. Till date, no action plan for procurement of buses has been
placed before us.
115. On the 28th of February 2018, CM No.8079/2018 was filed by
Dr. Kushal Das Mishra, an Orthopaedic Surgeon, who wishes to assist
this court in view of his expertise on the difficulties being faced by the
differently-abled in travelling and mobility. We had permitted him to
be impleaded as petitioner no.4.
116. By our order dated 2nd April, 2018, we had again directed that the
respondents shall place before this court the study/reports, if any,
available or obtained by them with regard to the procurement of buses
(low floor as well as standard floor) before the next date of hearing.
No such document is forthcoming.
117. On the 14th of May 2018, Mr. Jai Dehadrai, ld. counsel for the
petitioner had made a strong opposition with regard to the proposal of
the respondents to acquire standard floor buses inter alia on grounds of
safety concerns as well. However, this submission could not be
examined as time was sought on behalf of the Government of NCT of
Delhi to file its response to the petitioner's affidavit.
118. On the 14th of May 2018, we had noted the submissions of Mr.
Aman Panwar, ld. counsel, who appears for the petitioner no.3, who had
drawn our attention to the minutes of the third meeting of the Delhi
Transport Corporation (DTC) Board held on 27th June, 2013 wherein
inter alia the following decision was taken :
"(b) AUTOMATIC TRANSMISSION :
The TRC recommended for Automatic Transmission in place
of Manual Transmission after due consideration of the
following :
(i) Automatic or Automatic Manual Transmission
System mandatory from 1st April, 2015.
(ii) DTC's new fleet of 3775 Low Floor Buses with
Automatic Transmission System already operating.
(iii) Drivers have become attuned to Automatic
Transmission System.
(iv) Automatic Transmission System most comfortable
Transmission System for drivers.
(v) DTC experience of frequent breakdowns in
Manual Transmission in respect of clutch & pressure
plates, propeller shafts and U-joints, gear box faults etc
in Standard Buses due to non-using of clutch while
changing gears and clutch riding by drivers.
(vi) Driver's fatigue due to frequent clutching and de-
clutching while changing gears in Delhi congested
traffic conditions.
(vii) Automatic Transmission is superior technology
in comparison to Manual Transmission already
adopted by the Corporation, as such, cost may not be
the sole criteria when the buses in question are being
purchased and to be maintained for a period of 12
years specifically when it adds to driver's comfort and
fatigueless driving for comparatively better safety of
passengers.
(viii) At the time of tendering for Low Floor CNG
Buses in the past, the VMs were not ready with the
technology. However, the Corporation went ahead with
procurement of Low Floor CNG buses with Automatic
Transmission and both the VMs were able to deliver
3775 Buses to the Corporation.
(ix) The VMs are required to design, manufacture &
develop prototype Standard Bus fitted with Automatic
Transmission for Type Approval as per the
requirements of the Corporation involving large
quantity of buses.
(c) SUSPENSION SYSTEM :
The TRC noted that as per Recommendatory Urban Bus
Specifications II, any bus delivered after 1st April' 2015 will
mandatorily have Air Suspension or Superior in both front &
rear. Keeping in view jerk less comfortable bus journey &
comfortable ride for the passengers and this feature has
already been adopted by the Corporation in 3775 Low Floor
Buses, Air-Suspension may be provided on all wheels."
(Emphasis by us)
119. Mr. Aman Panwar, ld. counsel for the petitioner no.3 had pointed
out that the Delhi Transport Corporation had in the decision dated 27th
June, 2013 effectively accepted that the specifications of the Ministry of
Urban Development are of binding effect.
120. It was further pointed out by Mr. Aman Panwar, ld. counsel for
the petitioner no.3 that the "Recommendatory Urban Bus Specifications
II" of the Ministry of Urban Development, Government of India binds
the procurement of any buses by the Delhi Transport Corporation and
that the efforts to procure the standard floor buses are in contravention
of the said specifications of the Ministry of Urban Development".
121. In view of these imperatives which had to be considered before
procurement of buses, on the 14th of May 2018, Mr. Anand Grover, ld.
Senior Counsel for the GNCTD as well as the DTC had assured this
court that "no contract will be awarded so far as the acquisition of
standard floor buses is concerned till the next date of hearing". We had
directed that the respondents shall remain bound by this statement. This
submission has continued till date.
122. We may note that detailed affidavits have been filed by M/s Tata
Motors Ltd. as well as M/s Ashok Leyland. Inasmuch as we are yet to
hear the official respondents on these affidavits, we are desisting from
making any comment thereon.
123. We may note that on the 30th of May 2018, we had recorded the
following order :
"1. Time is sought on behalf of the respondents to place
before this court, on affidavit, the timelines within which
the public transport system in Delhi, which includes the bus
fleet maintained by the Delhi Transport Corporation, shall
be made disabled friendly. Let the same be done forthwith.
2. The respondents shall also place before this court on
affidavit the timelines within which the bus
stops/stands/shelters shall be made disabled friendly as well
as the necessary repairs/renovations as are necessary to the
roads to enable effective usage thereof for plying disabled
friendly buses as well as enabling their use by the disabled.
Undertakings of compliance shall be filed in the affidavit.
3. It is trite that all parties are bound to comply with the
judgments of the Supreme Court of this court and the
provisions of the special law i.e. the Rights of Persons with
Disabilities Act, 2016.
4. We make it clear that, if we permit the acquisition of
2,000 standard floor buses, as proposed by the respondents
for rural Delhi, it shall be only as an interim measure and a
stop gap arrangement pending completion of all necessary
steps for making the transport system disabled friendly.
5. The respondents are categorical before us that roads
in rural Delhi are in dire condition and that there are no
effective public transport available in rural Delhi.
6. List on 1st June, 2018."
(Emphasis supplied)
124. The above order has not been complied with. No time line
regarding procurement of accessible transport is placed.
125. Mr. Sanjoy Ghose, Additional Standing Counsel for the
Government of NCT of Delhi has drawn our attention to a Cabinet
Decision No.2579 dated 18th May, 2018 which takes note of our dated
14th May, 2018. In order to appreciate which transpired in the meeting,
it is necessary to extract the Cabinet decision in extenso which reads as
follows :
"GOVERNMENT OF NATIONAL CAPITAL TERRITORY
OF DELHI
GENERAL ADMINISTRATION DEPARTMENT
(CO-ORDINATION BRANCH)
DELHI SECRETARIAT, I.P. ESTATE, NEW DELHI
No.F.3/3/2018/GAD/CN/2052-2062 Dated: 21/5/2018
CABINET DECISION NO.2579 DATED 18.05.2018
Subject: Award of Concessions to the bidders of Clusters
Nos.13,14 (part), 16A and 16B for which bidding
was carried out by the Transport Department in
pursuance to Cabinet Decisions dated 01.09.2017
and 09.01.2018.
Decision: The Council of Ministers, in the meeting held on
15.05.2018, was apprised by Department of
Transport (DOT) that through bidding process,
companies have been selected for induction of 1000
CNG standard floor buses under Cluster Scheme.
Once the Agreements are signed with the said
companies and contracts awarded, supply of these
buses is expected to start from September, 2018. All
these 1000 buses are expected to be on the roads of
Delhi by end of April, 2019.
Attention of the Council of Ministers was drawn to
the order of the Hon'ble High Court dated
14.05.2018 in W.P.(C). 9643/2017 titled "Nipun
Malhotra vs. GNCTD & Ors."
The Council of Ministers, being concerned about the
observations made by the Hon'ble High Court,
deferred the decision on this item of the agenda on
15.05.2018 and directed DOT to explore the
feasibility of acquisition of law floor buses and to
revert to the Council of Ministers for consideration
at the next meeting.
DOT made inquiries with the established suppliers
of law floor buses as to the time lines within which
such buses can be supplied and feasibility of
acquisition of the same and towards this end. DOT
scheduled a meeting on 16.05.2018 with M/s Tata
Motors Ltd., M/s Ashok Leyland Ltd. and M/s
JBM. At this meeting, the manufacturers apprised
DOT that at the present moment, there was no type
approval of low floor CNG buses from the
approved agency in accordance with the provisions
of the CMVR and that a period of approximately
nine months would be required for obtaining type
approval from the date of award of contract.
Further, DOT apprised the Council of Ministers
that in view of the fact that the manufacturers do
not have type approval in place for CNG low floor
buses and keeping in mind the time which will be
taken to finalise the Tenders and issue NIT, it will
take around 1.5-2 years before the supply of low
floor CNG buses can start.
The Council of Ministers noted that no public
transport buses tender has been awarded by
GNCTD since 2011 and there is acute shortage of
buses. Global Tenders floated twice by DTC in
March 2013 (Low Floor Buses) and June 2014
(Standard Floor Buses) failed because of exorbitant
price quoted for AMC / Buses. If buses are not
added immediately and public transport not
strengthened then commuters will gradually shift to
private transport which will lead to more congestion
on roads and increase in pollution levels in Delhi.
The Council of Ministers directs DOT to
immediately initiate the process for procurement of
additional 2000 low floor buses. As DOT informs
that it will take more than two years before the low
floor buses start arriving, therefore, if the present
procurement of standard floor buses is cancelled
and no buses are procured for a further period of
two years, it would adversely impact public
transport in Delhi.
Resolved that, given the acquisition of 1000 CNG
standard floor buses was being undertaken
primarily to replenish the existing fleet and already
the National Capital Territory of Delhi is facing
severe shortage of buses and any further delay will
have adverse impact on public transport, the
Council of Ministers approves the proposal of the
DOT for 1000 CNG standard floor buses, as
contained in para-7 of the Cabinet Note. However,
the contracts will be awarded only after clearance
from the Hon'ble High Court in WP(C) 9643/2017
and permission of the Hon'ble Supreme Court of
India in the matter of M/s. AB Grains Spirits Private
Limited (SLP No.5512/2018) and M/s. Jay Madhok
Holding Private Limited (SLP No.5513/2018). The
extant factual position and the urgency in securing
this Standard Floor Bus fleet in larger public
interest should be informed to the Hon'ble High
Court.
--Sd/--
(Anshu Prakash)
Secretary to the Cabinet
Dated: 21/5/2018"
126. This decision of the Cabinet of the Government of NCT of Delhi
completely fails to even advert to the binding Indian obligations under
the International Convention and the provisions of the enactment of
2016. It also fails to take any notice of the binding directives as well as
of this court which have to be complied with.
127. Even as on 21st May, 2018, the Department of Transport was
directed to "explore the feasibility of acquisition of low floor buses". It
is stated to have also undertaken limited inquiries with three bus
manufacturers. Given the size of the order and number of buses which
have to be procured, in order to comport to the law, a more detailed
examination was required to be undertaken.
128. Before us, it is being stated that the three bus suppliers had stated
that obtaining type approval of low floor CNG buses from the approved
agencies would require a period of approximately nine months.
Considering the fact that more than two decades have passed since the
Supreme Court has been concerned with the matter, nine months for
obtaining the approval and "1.5 to 2 years" before the supply of low
CNG bus can start seems trivial.
129. The decision to press and go ahead for standard floor buses rests
on the consideration that since 2011, no public transport bus tender has
been awarded by GNCTD.
130. This only reflects the lack of concern that the public transport
system. Such negligence can nowhere enable an authority to ignore the
right to equality and non-discrimination of persons with disability as
well as elder persons.
131. It is to be noted that the Cabinet decision still ignores the fact that
even acquisition of buses would be immaterial unless bus stands,
stations and roads were modulated/rectified or constructed to enable
mobility to the disabled and access to the public transport system. The
above narration shows that we have not even begun conversations in
this regard.
132. This decision also reflects no real intention to acquire accessible
transport in Delhi. The first writ petition is pending since September,
2017. We have called upon the respondents repeatedly to place their
proposals for procuring accessible transport. In almost eight months,
the respondents have taken no steps to even commence the planning, let
alone the tendering process. It is noteworthy that, in comparison the
respondents are undertaking herculean efforts to procure the standard
floor buses. Procuring of low floor buses by the respondents, therefore,
seems to be a very remote possibility. It is certainly at the bottom of
their priorities.
133. Procuring buses which are inaccessible to the disabled infracts
the mandate of the Rights of Persons With Disabilities Act, 2016 and
the imperative and repeated directions of the Supreme Court not only is
completely impermissible but also reflects callous apathy and gross
indifference to environmental degradation as well as infringement of
rights of the citizens of Delhi, under Article 21 of the Constitution of
India, to a clean and healthy environment. The actions of the
respondents are in complete violation of the 'Harmonious Guidelines
and Space Standards for Barrier Free Built Environment for Persons
with Disabilities and Elder Persons'. It is also in violation of the right
to road safety of the residents of Delhi as admitted by the respondents
decades ago. The same is violative of the imperative directions of the
Supreme Court in M.C. Mehta; Rajive Raturi and of this court in Court
on its own Motion.
Insistence on making only 10% of the bus fleet disabled friendly -
highly improper and legally impermissible
134. It is unfortunate that in para A (viii) of its submissions, the Delhi
Transport Corporation has yet again insisted that at Sr.No.7 of para 26
of Rajive Raturi, the Supreme Court had stated that only 10% of
government owned public transport carriers have to be made fully
accessible by March, 2018.
135. So far as total fleet of DTC and cluster buses is concerned, the
respondent no.4 has explained that total fleet of DTC and cluster buses
is about 5,400 out of which 3,781 buses is low floor (disabled friendly).
136. The respondent no.4 calculates that with the procurement of
another 2,000 buses, the bus fleet would be 7,400 buses. It is submitted
that keeping in view the Government of India guidelines, only 10% of
the buses have to be low floor buses which would mean only 740 buses,
which is much lower than the low floor buses (3,781) owned by the
Government, at present.
137. We have extracted above, the clear mandate of the pronunciation
of the Supreme Court in Rajive Raturi v. Union of India & Ors. It is to
be noted that this position is a grave misreading of the judgment. Para
26 of Rajive Raturi only extracts the submissions of the Government of
India in its affidavit. The directions of the court are contained in para
34 of the judgment.
138. The submissions on behalf of the respondents and their efforts to
procure standard floor buses either by the DTC or in their cluster
scheme is in complete violation of the directives of the Supreme Court.
As noted above, this submission also ignores completely the
requirement of the law as laid down in the Rights of the Persons with
Disabilities Act, 2016.
139. During the course of hearing, we had queried from Dr. Dhruv
Mehta, learned Senior Counsel for the DTC as well as Mr. Sanjoy
Ghose, Addl. Standing Counsel for the Government of NCT of Delhi
that if the court was to accept the submission that the respondents were
only required to make 10% of the bus fleet accessible to the disabled
and they were permitted to do so, how such 10% would be operated and
how the disabled would know when a bus which was accessible to them
was available? There was, of course, no answer forthcoming, as there
can be none.
140. There is no disability census available or a census in terms of
geographic distribution of the disabled population at all for the
respondents to undertake any meaningful planning or rationalisation, if
the same was legally permissible, which it clearly is not.
141. Accepting the submission that only 10% of the buses are required
to be made disabled friendly would mean endorsement of the position
that the disabled could follow no employment schedules. Their entire
schedules are to be governed by the schedule of the 10% accessible
public transport which the DTC and the respondents are willing to
provide.
142. The respondents have failed to furnish any timelines before us. it
is to be noted that W.P.(C) No. 9643/2017 has been pending since
September, 2017 more than eight months ago. The order was passed by
the Supreme Court on 15th December, 2017 and more than six months
have passed thereafter. The Government of NCT of Delhi has made no
steps at all to comply with the directions made by the court. We have
no authority or jurisdiction to modify these directions or the judgments
of the Supreme Court.
143. The respondents are in fact intending that we permit them to buy
standard floor buses in violation of the orders of the Supreme Court.
We would be committing contempt of the orders thereby.
144. The directions by the Supreme Court with regard to the
environment concerns in (1998) 6 SCC 63, M.C. Mehta v. Union of
India & Ors., also bind the respondents.
145. This submission shows that the respondents are bent upon
treating the disabled as non-existent, or, in any case not having any
rights. The respondents have not even conceptualized, let alone,
bothered to take a single step toward ensuring accessible transport in
Delhi.
146. This submission (that only ten percent of the buses have to be
disabled friendly) in fact underlines the reluctance of the respondents to
acquire accessible transport and to comply with the law.
147. In view thereof, even if we direct waiver of the assurance given
by Mr. Anand Grover, Senior Counsel, who appeared for DTC as well
as GNCTD, on the 14th of May 2018, the respondents are prohibited
from acquiring any standard floor buses by the pronouncements of the
Supreme Court of India; of this court as well as the statutory mandate
contained in the 'Rights of Persons with Disabilities Act, 2016' as well
as by the 'Harmonious Guidelines and Space Standards for Barrier
Free Built Environment for Persons with Disabilities and Elder
Persons' which bind the respondents.
148. In the light of the detailed narration of the law on the subject, the
respondents shall stand precluded from procuring any standard floor
buses.
149. List for further hearing on 16th July, 2018.
Dasti to parties.
ACTING CHIEF JUSTICE
C.HARI SHANKAR, J
JUNE 01, 2018
aj/kr
