Madras High Court
Vaishnavi Jayakumar vs The State Of Tamil Nadu on 5 July, 2022
W.P.No.5957 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.07.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
AND
THE HON'BLE MRS.JUSTICE N.MALA
W.P.No.5957 of 2021
Vaishnavi Jayakumar .. Petitioner
Vs.
1. The State of Tamil Nadu
Rep. by its Secretary
Transport Department
Fort St. George
Chennai.
2. The Metropolitan Transport Corporation Ltd.
Rep. by its Managing Director
No.2, Pallavan Illam
Pallavan Salai
Chennai 600 002.
3. State Commissioner for Persons with
Disabilities (Tamil Nadu)
Commissionerate for the Welfare of the
Differently abled
No.5, Kamarajar Salai
Lady Willingdon College Campus
Chennai 600 005. .. Respondents
___________
Page 1 of 14
https://www.mhc.tn.gov.in/judis
W.P.No.5957 of 2021
Prayer: Petition filed under Article 226 of the Constitution of India
praying for a writ of Certiorari calling for the records of the first
respondent culminating in G.O.Ms.No.31 dated 24.02.2021 and quash
the same.
For the Petitioner : Mr.A.Yogshwaran
For the Respondents : Mr.R.Shunmugasundaram
Advocate General
Assisted by
Mr.P.Muthukumar
State Government Pleader
for Respondents 1 & 3
Mr.Kalyanaraman
For M/s. Aiyar and Dolia
for Respondent-2
Mr.T.Mohan
Amicus Curiae
ORDER
(Order of the Court was made by
the Hon'ble Chief Justice)
The writ petition has been filed challenging G.O.Ms.No.31
dated 24.02.2021 issued by the first respondent.
___________
https://www.mhc.tn.gov.in/judis
W.P.No.5957 of 2021
2. The challenge to G.O. has been made on the ground of
violation of Section 41 of the Rights of Persons with Disabilities Act,
2016. It is also on the ground that when no direction has been
given by the Apex Court to have only 10% of the government buses
disabled friendly, G.O. indicates only 10% of the total number of
Government buses to be low floor buses.
3. It is stated that all the government buses should conform
to the provisions of the Act of 2016 and the Rules framed
thereunder, apart from the Harmonised Guidelines issued by the
Government of India. But, the respondents have decided to apply
those provisions only to the extent of 10% of the government buses
to be accessible for the differently abled persons. The G.O. dated
24.02.2021 thus offends the provisions of the Act of 2016 and the
Rules of 2017, apart from the Harmonised Guidelines issued by the
Government of India.
4. In view of the above, there was a need for the petitioner
to prefer a writ petition to seek all the government buses to operate
___________
https://www.mhc.tn.gov.in/judis
W.P.No.5957 of 2021
in compliance of the provisions of the Act of 2016 and Rules of
2017. In the absence of compliance of the provisions of the Act,
more specifically Section 41 of the Act of 2016 and Rule 15 of the
Rules of 2017, the decision of the first respondent in issuing
G.O.Ms.No.31 dated 24.02.2021 is not sustainable and therefore, a
direction may be given to the respondents to bring all the
government buses in conformity with Harmonised Guidelines and
Space Standards for Barrier Free Built Environment for Persons with
Disability and Elderly Persons, particularly in reference to Clause
11.7.1.2 regarding low floor buses.
5. Learned counsel for the petitioner has made a reference to
the judgment of the Supreme Court in the case of Rajive Raturi v.
Union of India [(2018) 2 SCC 413]. It is to submit that there is
no direction by the Apex Court to manage only 10% of the
Government owned public transport corporation to be in conformity
with the provisions of the Act or Rules and the Guidelines. In fact,
paragraph 34.7 of the said judgment mandates that all the
government buses should be disabled friendly and in accordance
___________
https://www.mhc.tn.gov.in/judis
W.P.No.5957 of 2021
with the Harmonised Guidelines.
6. In the instant case, the G.O. under challenge states that
only 10% of the government transport buses are to be in
conformity with the Act of 2016, Rules of 2017 and Harmonised
Guidelines. Accordingly, a prayer is made not only to set aside the
G.O., but to further direct the respondents to make strict compliance
of the Act and Rules, apart from the Harmonised Guidelines issued by
the Government of India.
7. Learned Advocate General submits that the G.O. under
challenge was issued in the month of February, 2021. However, on
account of the interim order, the buses could not be purchased by the
State Government / Transport Corporation. Otherwise, the State
Government has no intention to flout either the provisions of the Act of
2016 or the Rules of 2017. It would also follow the Harmonised
Guidelines issued by the Government of India apart from other
Guidelines.
___________
https://www.mhc.tn.gov.in/judis
W.P.No.5957 of 2021
8. According to learned Advocate General, a direction may be
issued to safeguard the buses which were purchased prior to the
enactment of Act of 2016 and Rules of 2017 and also the Harmonised
Guidelines of the Government of India. Therefore, to that extent, the
provisions of the Act and Rules, apart from the Harmonised Guidelines
may not be made applicable.
9. It is stated that in the absence of umpteen number of buses,
it has become very difficult for the passengers to travel from one place
to another in the city of Chennai. Thus, Government intends to
purchase 2213 buses. Therefore, a prayer is made to dispose of the
writ petition, with appropriate direction, so that the State Government
/ Corporation would purchase the buses without any further delay.
10. We have considered the rival submissions and perused the
records.
11. The writ petition was filed to challenge the G.O. dated
24.02.2021 said to have been issued in violation of Section 41 of the
Act of 2016 and Rule 15 of the Rules of 2017, apart from the
___________
https://www.mhc.tn.gov.in/judis
W.P.No.5957 of 2021
Harmonised Guidelines issued by the Government of India. It is even
by taking a wrong interpretation of the judgment of the Apex Court in
the case of Rajive Raturi supra.
12. The sum and substance of the prayer is to set aside the
impugned G.O. and at the same time, to issue a direction to the State
Government / Corporation to ply all the buses in compliance of the
provisions of the Act of 2016 and Rules made thereunder, apart from
the Harmonised Guidelines.
13. Learned Advocate General has not contested the prayer
made by learned counsel for the petitioner, as otherwise, the State is
duty bound to comply the provisions of the Act of 2016 and Rules of
2017 made thereunder and the purchase of new buses would be in
conformity with the provisions of law. The only clarification sought by
learned Advocate General is regarding the buses purchased prior to
the enactment of Act of 2016 and Rules of 2017.
14. In the light of the aforesaid, it would be appropriate to refer
to Section 41 of the Act of 2015, Rule 15 of the Rules of 2017 and
___________
https://www.mhc.tn.gov.in/judis
W.P.No.5957 of 2021
Clause 11.7.1.2 of the Harmonised Guidelines and also paragraph 34.7
of the decision of the Apex Court in Rajive Raturi supra, which read
as under:
Section 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."
___________
https://www.mhc.tn.gov.in/judis
W.P.No.5957 of 2021
Rule 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:
___________
https://www.mhc.tn.gov.in/judis
W.P.No.5957 of 2021
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."
Clause 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
___________
https://www.mhc.tn.gov.in/judis
W.P.No.5957 of 2021
- Wheel stoppers and wheelchair safety belts
should be provided."
Paragraph 34.7 of the decision in Rajive Raturi supra:
"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."
15. As per the provisions and Harmonised Guidelines issued by
the Government of India extracted above, the State Government /
Transport Corporation would be at liberty to purchase the buses in
conformity with the aforesaid and while doing so, they would also take
care of the direction given by the Apex Court in the case of Rajive
___________
https://www.mhc.tn.gov.in/judis
W.P.No.5957 of 2021
Raturi supra. If any deviation is permitted by the Apex Court or any
additional direction is given, then it goes without saying that it would
also be taken note of by the respondents while purchasing the buses.
16. With the aforesaid, the writ petition is disposed of causing
interference with G.O.Ms.No.31 dated 24.02.2021 only to the extent
that it offends any of the provisions of the Act or Rules or the
Harmonised Guidelines issued by the Government of India and
directing the respondents to ply all the Government buses, in
conformity with the provisions of the Act and Rules and the
Harmonised Guidelines quoted above and in the light of the judgment
of the Apex Court in the case of Rajive Raturi supra. There will be no
order as to costs.
(M.N.B., CJ.) (N.M., J.)
05.07.2022
Index : Yes/No
kpl
To:
___________
https://www.mhc.tn.gov.in/judis
W.P.No.5957 of 2021
1. The Secretary
Transport Department
Fort St. George, Chennai.
2. The Managing Director
Metropolitan Transport Corporation Ltd.
No.2, Pallavan Illam
Pallavan Salai, Chennai 600 002.
3. State Commissioner for Persons with Disabilities (Tamil Nadu)
Commissionerate for the Welfare of the Differently abled
No.5, Kamarajar Salai
Lady Willingdon College Campus
Chennai 600 005.
___________
https://www.mhc.tn.gov.in/judis
W.P.No.5957 of 2021
M.N.BHANDARI, CJ
AND
N.MALA,J.
(kpl)
W.P.No.5957 of 2021
05.07.2022
___________
https://www.mhc.tn.gov.in/judis
