Madras High Court
Vaishnavi Jayakumar vs The State Of Tamil Nadu on 18 April, 2023
WP No.29914 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.04.2023
CORAM
THE HON'BLE MR.T.RAJA, ACTING CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Writ Petition No.29914 of 2022
and
Sub Application No.774 of 2022
Vaishnavi Jayakumar ... Petitioner
versus
1.The State of Tamil Nadu
Rep. by its Secretary
Transport Department
Fort St. George Chennai.
2.The Institute of Road Transport
Rep. by its Director, 100 Feet Road,
Taramani Chennai-600 113.
3.M.K.Divyadeshna
4.T.S.Santhakumari
5.Kavitha P.
6.Sudha Ramalingam ... Respondents
(respondents 3 to 6 impleaded vide order
dated 12.12.2022 in WMP Nos.32459, 32462,
32493 and 32496 of 2022)
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Prayer: Writ Petition under Article 226 of the Constitution of India praying for a
writ of certiorari calling for the records of the 2nd respondent culminating in
tender bearing IRT Tender No.16/SF-Fully Built Bus/CP/IRT/2022 issued on
10.10.2022 and quash the same in so far as it relates to the procurement of
1107 Type I Buses of floor height 900 mm.
For the Petitioner : Mr.A.Yogeshwaran
For the Respondents : Mr.P.S.Raman,
Senior Counsel,
for Mr.C.Gowtharaj, for R-2
Mr.J.Ravindran,
Additional Advocate-General
assisted by Mr.P.Muthukumar,
State Government Pleader
for the first respondent
Mr.R.Bharadwajaramasubramaniam,
for respondents 5 and 6
Mr.M.V.Swaroop,
for respondents 3 and 4
ORDER
(Made by The Hon'ble Acting Chief Justice and Justice D.Bharatha
Chakravarthy)
A. The Writ Petition :
The writ petition is filed challenging the tender floated by the
respondents viz., the State of Tamil Nadu and the Institute of Road Transport,
Chennai, for procurement of 1107 Type I Buses of floor height 900 mm. The pro
bono publico is espousing the cause of differently-abled persons who are using
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wheel-chair, as also, senior citizens and other persons with difficulties, who
cannot use the public transport if these high floor buses are permitted to be
procured.
B. The Case of the Petitioners:
2. It is the case of the petitioners that the matter of access to
transportation for the differently-abled is under consideration for quite a long
period of time and ultimately, the Hon'ble Supreme Court in Rajive Rathuri
vs. Union of India, 2018(2) SCC 413, considered the matter in detail and in
paragraph 34.7, held “all the Government buses should be disabled friendly
and in accordance with the harmonised guidelines”. The Harmonised
Guidelines and Standards for Universal Accessibility in India, 2021, framed by
the Ministry of Housing and Urban affairs, Government of India, clearly
stipulates that buses should be of low floor. This apart, there has been earlier
orders of this Court in respect of State of Tamil Nadu itself. By order dated
05.07.2022 in WP No.29914 of 2022 etc, this Court, after considering the
directions of the Hon'ble Supreme Court in Rajive Rathuri, quashed the earlier
G.O.Ms.No.31 dated 24.02.2021, holding that a total number of 10% of the
buses shall be disabled friendly and directed the respondents to ply all the
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Government buses in conformity with the provisions of the Act and Rules and
the harmonised guidelines in the light of the judgment of the Apex Court in the
case of Rajive Rathuri.
3. Further, there was also one more round of litigation as early as in the
year 2005 in WP No.38224 of 2005 and from then on, even though repeated
directions have been given to purchase low floor buses and make the public
transport accessible to persons who are differently-abled, the factual position
on date is that there are no low floor buses at all plying in the city of Chennai.
Therefore, when the State is obliged to convert all its buses compliant of the
above directions, it goes without saying that the new buses which are to be
procured should be of low floor only. Apart from the writ petitioner, several
other interested parties had also filed applications to implead and the same
were allowed and they all supported the case of the writ petitioner.
C. The Case of the State:
4. It is submitted on behalf of the respondents that even though orders
were earlier passed, the fact remains that none of the buses plying in the
State of Tamil Nadu is low floor. There are some practical difficulties such as
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road conditions, inundation during rainy seasons, the longer length of low floor
buses, higher cost, lack of competition in procurement inasmuch as only two
manufacturers alone manufacture and supply low floor buses, maneuvering
space in the roads; lack of proper platform in the bus stops enabling them to
get-in etc. and therefore, it is pleaded that the State, after taking into
consideration the directions given in the earlier judgments, is now procuring
buses by way of three tenders. By the present tender impugned in the writ
petition, 1107 high floor buses are sought to be procured. At the same time, by
two other tenders, 242 low floor diesel buses and 100 low floor electric buses
are being purchased. Therefore, taking into consideration of total procurement
of 1449 buses, almost 23.6% of the buses will be low floor. Therefore, the same
satisfies the earlier directions of this Court.
5. In support of their contentions, the respondents also relied upon the
judgment of the Hon'ble Supreme Court in SLP Nos.19062 & 19063/2018 in
Government of NCT of Delhi and others vs. Nipun Kumar Malhotra and
others, the Hon'ble Supreme Court itself considered the directions in Rajive
Rathuri and held that though there is a legitimate expectation that all the
buses should be low floor buses, the Court also has to keep in mind the
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practical difficulties that may be faced by the State Governments, including
their difficulties in procuring such buses, permitted the Government of Delhi
to purchase 500 standard floor buses as an interim measure. Therefore, they
would plead that they may be permitted to go ahead with the procurement of
the buses.
D. The Rebuttal:
6. Per contra, rejoinders/affidavits were filed by the writ petitioner and
the impleaded parties, bringing to the notice of the Court that while
considering the percentage, even to calculate 10%, the entire fleet operating
within the Chennai city and in the respective metropolitan cities have to be
considered, and not the percentage with respect to the procurement alone
should be considered. It is also pleaded that except the low floor buses, no
other solution proved to be effective. The lift system which was sought to be
used in the high floor buses is admitted to be a failure by both sides. Besides,
with the kind of crowd in the metropolitan cities, it is impossible to operate
such lifts to enable the wheel-chair bound commuters to get inside the bus.
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E. The Proceedings before this Court:
7. During the course of arguments, both sides agree on the basic
principles that the differently-abled also have a right to access the public
transport and the State has to improve the road conditions, bus stops and all
other facilities so as to make the public transport system more and more
accessible. The only question remained was to how best to resolve the impasse
of accommodating the above long term interest on the one hand and dealing
with the practical difficulties on the other. As a matter of fact, this Court
conducted repeated long winding hearings.
F. Resolving the Impasse:
8. We heard Mr.A.Yogeshwaran, who submitted in detail about the legal
position, the dire needs of differently abled persons and about the practical
aspects of the matter. We also heard Mr.P.S.Raman, learned Senior Counsel, for
the second respondent and Mr.J.Ravindran, learned Additional Advocate-
General, appearing for the first respondent. Learned counsel M/s. Bharadwaj,
Ramasubramaniam, M.V.Swaroop for the impleading parties also enlightened
this Court about the need for low floor buses. This Court also made a sojourn
into pragmatism by directing ply one low floor bus in some of the routes,
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including the routes in which CMRL work is going on and in some difficult
routes with narrow roads and sharp turnings. The parties to this litigation along
with their counsel undertook the journey. This apart, Dr.Chelliah, learned
Senior Counsel, Mr.Ravi Anandapadmanabhan, learned Senior Counsel,
Mr.Elephant Rajendran learned counsel, at the request of this Court, also
traveled in the bus, and all of them submitted that their written reports. This
apart, this Court even interacted with the driver of the bus who drove the low
floor bus.
9. Based on the written reports and the oral submissions made
thereafter, the cumulative feedback which is received by this Court is that the
plying of low floor buses is very much feasible. There may be some difficulties
in some junctions regarding maneuvering; in some bus stops in the differently
abled persons may not be able to make ingress into the bus; and in some
routes during rainy seasons due to inundation and due to unscientific speed-
breakers etc., there will be difficulties. But over all, the feedback of all the
learned counsel, including the learned Senior Counsel appearing for the State
is that the low floor buses are very much pliable and all the other factors
cannot be put against but only need to be improved.
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10. Keeping that in mind, when we further enquired, it is assured by
Mr.P.S.Raman, learned Senior Counsel and Mr.J.Ravindran, learned Additional
Advocate-General that these low floor buses will be deployed as widely as
possible in all the possible routes, taking into consideration the on-field
requirements of the differently-abled persons. This apart, on our request, it is
also assured on behalf of the State that already a mobile application, which is
developed by the metropolitan transport Corporation is in operation, in which
suitable features will be added by showing the movement of these buses so
that even before heading to the bus stop, the differently-abled persons will
know at what time and in which route, these low floor buses are running on
real time basis.
11. This apart, Mr.P.S.Raman and Mr.J.Ravindran would submit that it is
also the endeavour of the State Government to make the entire fleet as low
floor. However, it has also to be noted that so far, i.e. up to the year 2023, the
number of low floor buses is zero. Therefore, when the Government is making
a good beginning by purchasing substantial number of low floor buses, it should
be encouraged and further, Mr.P.S.Raman and Mr.J.Ravindran left it to this
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Court to increase the number low floor buses. They would submit that apart
from the above practical difficulties, the costs of the bus both procurement
cost and operational costs is also high and therefore, suddenly, in the current
exercise, if the direction is issued to procure only low floor buses, that would
cause severe strain and make it impracticable for the state to implement both
financially and otherwise.
12. Learned counsel for the writ petitioner and the impleading parties,
though in-principle opposed to purchasing any new high floor vehicle, would at
the same time, consider the practical and pragmatic difficulties and would
resign to the more important fact that a beginning has to be made and that
something is better than nothing. In that view of the matter, when the learned
Senior Counsel and the learned Additional Advocate-General had made a
solemn undertaking that the State will ensure substantial increase the
percentage in the ensuing acquisitions of new fleet and pleaded that even in
the present tenders, this Court can further increase the number of low floor
buses, we thought it fit to consider the practical difficulties and the order of
the Hon'ble Supreme Court in Government of NCT, Delhi (supra), and proposed
that instead of 1107 high floor buses, the Government shall reduce the same to
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950 and the balance 157 bus shall be of low floor and be simultaneously
procured, in addition to the 342 low floor buses already being procured by
separate tenders. The same was accepted by the learned counsel appearing on
behalf of the State and considering the fact that for the first time a
considerable number of low floor buses are being procured, there was no
serious objection on behalf of the learned counsel appearing on behalf of the
petitioner and other impleading parties also.
G. The Order:
13. Therefore, these writ petitions are disposed of with the following
directions:
(i) The respondents can proceed ahead with
the impugned tender IRT Tender No.16/SR-Fully
Built Bus/CP/IRT/2022 dated 10.10.2022, but
however, shall only procure 950 buses of Type I
Buses of floor height 900 mm;
(ii) Within two weeks from the date of
receipt of a copy of this order, they shall also issue
a fresh tender to procure 157 low floor buses and
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the said tender shall also be processed
simultaneously;
(iii) The procurement of the 342 low floor
buses both electric and diesel shall also be
processed and expedited, so that the said fleet are
also in place simultaneously with these high floor
buses;
(iv) The respondents and the respective
transport corporations in the city of Chennai and
other cities shall, with due application of mind, by
forming a committee of officials, one from the
Transport Department, one from the Institute of
Road Transport, one from the respective
Metropolitan Transport Corporation and one
representative from the differently-abled
organisations, shall, with due consultations of
experts, decide upon the routes in which these low
floor buses shall be plied, their timings, etc. taking
into account the utmost benefit to the most
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number of differently-abled persons as the primary
objective;
(v) In respect of each metropolitan city of
Chennai, Coimbatore, Trichy, Madurai etc. mobile
applications shall also be developed which, in real
time, should indicate the movement of these low
floor buses for the differently-abled persons to
come to the bus stop and board the buses by
properly planning their time;
(vi) As directed by this Court in the earlier
directions, the respective Municipal Corporations
shall strive to continuously improve the quality of
the roads, their maneuvering capacity and shall
scientifically lay the bumps/speed breakers
enabling the smooth running of these low floor
buses;
(vii) The bus stops should be scientifically
designed to suit the requirements of the
differently-abled and henceforth, any development
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or reconstruction or repairing or improvement in
any of the bus stops should include and focus in
making it differently-abled friendly, with due
facility for the wheel chair to go into the low floor
bus, directly from the platform;
(viii) Special training should be imparted to
the drivers and conductors of these low floor buses,
firstly to be patient enough to stop the bus and
assist the persons who are differently-abled/wheel
chair bound commuters to get in and alight from
the buses from their appropriate destinations;
(xi) It is made clear that the permission to
purchase the high floor buses is granted by this
order only as an exception and all endeavour should
be made to purchase only low floor buses in the
ensuing years, in respect of the fleet which are to
be run within the cities and its suburbs;
(x) A copy of these directions could be widely
circulated to all the automobile manufacturers and
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to such organisations, to create awareness that
there will be market only for the low floor buses in
future, so that there will be more and more players
in the field, so as to supply low floor buses, as per
the requirements of the State.
14. There will be no order as to costs. Consequently, WMP No.29308 of
2022 is closed.
15. Sub application No.774 of 2022 filed to accept the cause title as
respondent in Contempt Diary No.127446/2022 is closed in view of the order
passed in the writ petition.
16. WMP No.11520 of 2023 to reopen the proceedings in the writ
petition is closed.
Hk. The Epilogue:
17. We place on record our appreciation to the petitioner and the
impleaded parties as well as Mr.Yogeswaran, learned counsel for the petitioner,
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Mr.P.S.Raman, learned Senior Counsel, Mr.J.Ravindran, learned Additional
Advocate-General, Mr.Bharatwaj, Mr.Swaroop, learned counsel; Dr.Chelliah,
learned Senior Counsel, Mr.Ravi Anandapadmanabhan, learned Senior Counsel,
Mr.Elephant Rajendran, learned counsel for their valuable services in not only
placing the legal position before this Court but in approaching the issue in a
pragmatic manner to take the first step ahead to make public transport in the
city of Chennai and other cities disabled friendly.
After all, the world is theirs too!!
(T.R., ACJ.) (D.B.C., J.)
18.04.2023
Index : Yes/No
Neutral Citation : Yes/No
tar
To
1.The Secretary
Transport Department
Fort St. George Chennai.
2.The Institute of Road Transport
Rep. by its Director, 100 Feet Road,
Taramani Chennai-600 113.
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WP No.29914 of 2022
T.RAJA, ACJ,
and
D.BHARATHA CHAKRAVARTHY, J.
(tar)
WP No.29914 of 2022
18.04.2023
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