Roppen Transportation Services Pvt Ltd v. Union of India

(iii) Clause 7 which lays down compliances with regard to drivers;

(iv) Clause 8 which enunciates compliances with regard to vehicles;

(v) Clause 9 which refers to compliances with regard to aggregators’ apps and websites;

(vi) Clause 10 which stipulates compliances to ensure safety among other provisions; and

(vii) Clause 13 which makes provisions for the regulation of fares.

7 Clause 15 of the Model Guidelines is extracted below:

8 Clause 15(1) stipulates that the Central and the State Governments seek to pursue the objective of reducing traffic congestion and automobile pollution as well as effective asset utilization. However, clause 15 also stipulates that the pooling of non-transport vehicles may be provided by the aggregator unless prohibited by the State Government. The rationale for such a prohibition has to be specified in writing by the State Government and has to be accessible on its transport portal.

9 Government of Maharashtra has not formulated any rules in relation to aggregators for the purpose of enforcing the provisions of Chapter V, more particularly, Section 93(1). The first proviso to Section 93 stipulates that while issuing a licence to an aggregator, the State Government may follow such guidelines as may be issued by the Central Government. The Guidelines which have been issued by the Central Government have a persuasive value. They are not mandatory. When the State Government formulates rules in pursuance of its power under Section 96, it may also bear in mind the Guidelines which have been framed by the Union Government in 2020. Both in terms of the first proviso to Section 93(1) and the plain terms of the Guidelines, it is evident that while these Guidelines have to be borne in mind, the ultimate decision is to be arrived at by the State Government while considering whether to grant a licence and in regard to the formulation of rules in pursuance of the general rule making power under Section 96.

10 In the present case, the first petitioner in SLP(Civil) No 3007 of 2023 is an aggregator within the meaning of the amended provisions of the statute. The case relates to the claim of the petitioners to provide the services of an aggregator for two wheeler vehicles across the State of Maharashtra. The first petitioner made an application for the grant of a licence. By an order dated 21 December 2022, the Road Transport Officer at Pune[2], rejected the application on the ground that it did not comply with various terms and conditions of the 2 “RTO” Guidelines of 2020. The relevant part of the order of the RTO is extracted below: “Decision:

1. Two Wheeler Bike Taxi Aggregator License: Applicant M/s.. Roppen Transportation Services Pvt. Ltd. for getting his two wheeler bike taxi aggregator license Application dated 30/11/2022 Important matters in Motor Vehicle Aggregate Rules- 2020 viz. 4 (3), 5 (1), 5(2), 5(3), 7(1)(c), 7(1)(1), 7(1)(g) ), 7(1)(h), 7(2)(a), 7(2)(b), 7(2)(c), 7(2) (h), 7(2)(k), 7(2) (m), 8(2), 8(3), 8(5), 8(6), 8(10), 9(1), 9(2), 9(3) and 13 are not complete. After verification, lack of facility of simulator and induction training, operation of app without agitator license, all submitted undertaking without official signature and stamp, lack of sufficient experience of vehicle drivers, registration of two-wheelers not in transport category, etc. have been found incomplete. Also among the documents submitted are insurance certificate, fitness certificate, license, pollution control certificate, etc. for some vehicles. Legal documents are not attached (Please see Table No. 1 on Page No. 5). Also in the State of Maharashtra, no such scheme/ scheme of bike taxi has been implemented by the government or the state transport authority. Also, the bike taxi type of license /license is not issued. Also, there is no fare structure policy for bike taxis. Therefore, for the above reasons the regional transport authority decided to reject Rappen's two-wheeler bike taxi application. The said decision should be informed to the Applicant (M/s. Rappen Transportation Services Pvt. Ltd.) According to Sections 89, 90 of the Motor Vehicle Act, 1988 and Rule 97 of the Maharashtra Motor Vehicle Rules, 1989, an appeal can be submitted to the State Transport Appellate Tribunal, Mumbai (The State Transport Appellate Tribunal) within 30 days.

2. Three Wheeler Taxi Aggregator License: Applicant M/s Ropan Transportation Services Pvt Ltd. His application dated 30/11/2022 for obtaining three wheeler taxi aggregator license important points in Motor Vehicle Aggregator Rules 2020 viz point No.4 (3), 5 (1), 5 (2), 5(3), 7 (1) (b), 7 (1) (c), 7 (1) (d), 7 (1) (e), 7 (1) (f), 7 (1) (g), 7 (1) (b), 7 (2) (3), 7 (2) (b), 7 (2) (c), 7 (2) (h), 7 (2) (k), 7 (2) (m), 8 (2), 8 (3), 8 (5), 8 (6), 8 (10), 9 (1), 9 (2), 9 (3) and 13 are not perfect. Absence of simulator and induction training facility after application verification, App running without activator license, All submitted undertaking without official signature and stamp, Insufficient experience of drivers, No GPS system in vehicles, approved by Regional Transport Authority, Pune Information not provided as per fare basis, etc. imperfections have been found. Also, in the documents submitted, some legal documents such as insurance certificate, vehicle license, fitness certificate, license, public transport service badge, pollution control certificate, etc. are not attached. (Please refer Table NO. 2 on Page No.9)”

11 The petitioners instituted a writ petition before the High Court of Judicature at Bombay in order to challenge the legality of the decision of the RTO. During the course of the hearing, the High Court was apprised of the fact that on 19 January 2023, the State Government had issued a notification bearing on the issue.

12 The notification issued by the State Government on 19 January 2023 is extracted in its entirety below: “Home Department Madam Cama Marg Hutatma Rajguru Chowk, Mantralaya, Mumbai 400 032. Dated the 19th January 2023. No.MVR-0821/C.R.95/TR-2 Whereas, the Government of India has, vide Ministry of Road Transport and Highways (Transport), Letter No. F. No. 1601119/2019-T, dated the 27th November 2020, issued the Motor Vehicle Aggregator Guidelines, 2020 (hereinafter referred to as "the said Guidelines"), under the proviso to sub-section (1) of section 93 of the Motor Vehicles Act, 1988 (59 of 1988); And whereas, clauses 11 and 15 of the said Guidelines provides for ride pooling and aggregation of nontransport vehicles by aggregators, respectively. Subclause (1) of said clause 15 empowers the State Government to provide 'Rationale' for prohibition of nontransport vehicles pooling by aggregators; And whereas, it is observed that, use of non-transport vehicles (including two wheelers, three wheelers and four wheelers) as transport vehicles is on the rise enormously and raises serious practical and security concerns of the passengers and which may cause serious threat to the road safety of general public and passengers, at large; And whereas, the number of vehicles registered in the non-transport category is very large, therefore the nontransport vehicles registered outside the State of Maharashtra may also be used for the purpose of vehicle aggregation and may affect the economic viability of the vehicles operating on valid permits in the State of Maharashtra; And whereas, the issue of whether non-transport vehicles can be permitted to be used as transport vehicles, including for aggregation and ride pooling thereof requires detailed consideration regarding terms and conditions, framework and guidelines thereof. Therefore, the State Government has constituted the committee to study the said issues and to give recommendations thereof; And whereas, the Government considers it expedient to prohibit the pooling of non-transport vehicles by aggregators in order to ensure road safety of the general public and passengers at large in the State of Maharashtra; Now, therefore, the Government of Maharashtra, in pursuance of clause 15 of the Motor Vehicle Aggregator Guidelines, 2020, hereby prohibits the use of nontransport vehicles (including two wheelers, three wheelers and four wheelers) for the purposes of aggregation and ride -pooling thereof. By order and in the name of the Governor of Maharashtra (R.M. Holkar) Joint Secretary to Government” 13 By the above decision, the State Government has noted that the issue of whether non-transport vehicles ought to be permitted to be used as transport vehicles including for aggregation and ride pooling requires consideration. A Committee was constituted by the State Government on 12 January 2023. Pending the decision of the Committee, the State Government has prohibited the pooling of non-transport vehicles by aggregators “in order to ensure road safety of the general public and passengers at large” in the State of Maharashtra. The Committee which has been constituted by the State Government on 12 January 2023 is chaired by a former IAS officer consisting, inter alia, of the Additional Director General of Police and representatives of the Transport Department and the Maharashtra State Road Transport Corporation.

14 The High Court adjudicated upon the challenge to the order of the RTO dated 21 December 2022. The High Court recorded that counsel appearing on behalf of the petitioners informed the Court that they would consider whether or not to challenge the notification dated 19 January 2023 separately and at that stage, the challenge was confined to the order of 21 December 2022 issued by the RTO. The High Court has also proceeded to observe that the Guidelines of 2020 leave a certain degree of latitude to the State Government and there is no policy of the State Government at the present point on the basis of which the petitioners would have an unrestricted right to obtain a licence.

15 Mr Mukul Rohatgi, senior counsel appearing on behalf of the petitioners, submitted that many of the requirements of the Guidelines of 2020 on the basis of which the application for a licence was rejected are unworkable. This has been seriously in contest since Mr Tushar Mehta, Solicitor General appearing on behalf of the State of Maharashtra, has urged that the Central Guidelines are intended to ensure, above all, the safety of the passengers and drivers for which purpose certain requirements have been introduced.

16 The correctness of the order of the RTO rejecting the application for a licence on 21 December 2022 is now overshadowed by the subsequent decision of the State Government arising out of its notification dated 19 January 2023. The State Government has categorically taken a decision that the issue as to whether non-transport vehicles should be permitted to be used as transport vehicles including for aggregation and ride pooling merits detailed consideration. Pending the decision of the Committee, the State Government has taken a decision to prohibit the use of non-transport vehicles for the purpose of aggregation.

17 There was no challenge before the High Court to the notification dated 19 January 2023. Two petitions have now been instituted before this Court under Article 32 of the Constitution for the purpose of challenging the notification of the State Government. We are not inclined to entertain the challenge to the notification dated 19 January 2023 of the Home Department of the State Government in proceedings under Article 32 of the Constitution. The petitioners would be at liberty to pursue the alternate remedy under Article 226 of the Constitution before the High Court. The correctness of the order of the RTO dated 21 December 2022 stands subsumed by the decision which has been taken by the High Court to entrust the examination of the entire issue by the Committee, before it decides on the use of non-transport vehicles for the purposes of aggregation and ride pooling.

18 During the course of the hearing, Mr Mukul Rohatgi submitted that while, on the one hand, the observations in paragraph 57 of the impugned judgment of the High Court reserve liberty to the petitioners to challenge the notification dated 19 January 2023, the observations in a subsequent part of the judgment, namely, paragraph 59 would preclude such a challenge.

19 In order to allay the above grievance, it needs to be clarified that while considering a challenge to the notification dated 19 January 2023, the High Court shall not consider itself bound by its observations in paragraph 59. At any rate, the latter observations are only in the context of the challenge to the decision of the RTO dated 21 December 2022 which alone was a subject matter of the proceedings before the High Court.

20 In the above backdrop, we grant liberty to the petitioners to move the High Court under Article 226 of the Constitution for the purpose of challenging the notification of the State Government dated 19 January 2023. The High Court shall consider any such challenge uninfluenced by the observations contained in the impugned judgment and order dated 20 January 2023.

21 The order of the RTO dated 21 December 2022 indicates that it has been passed on the ground that the provisions of the Guidelines of 2020 were not complied with. Once the State Government takes a final decision on the submission of the report of the Committee, the petitioners would be entitled to pursue their legal remedies after complying with such terms and conditions as may be prescribed in the decision of the State Government. The State Government shall take a final decision on or before 31 March 2023. The Committee shall take its final decision on or before 15 March 2023 so as to leave time to the State Government to take a considered decision by the end of March 2023.

23 Pending applications, including application for intervention, stand disposed of...…..…....…........……………….…........CJI. [Dr Dhananjaya Y Chandrachud] …..…..…....…........……………….… ........ J. [Pamidighantam Sri Narasimha] …..…..…....…........……………….… ........ J. [J B Pardiwala] New Delhi; February 07, 2023 -S- ITEM NO.18+40 COURT NO.1

SECTION IX S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS SPECIAL LEAVE PETITION (CIVIL) Diary No(s). 2490/2023 (Arising out of impugned final judgment and order dated 07-03-2022 in PILL No. 9775/2020 passed by the High Court of Judicature at Bombay)

ROPPEN TRANSPORTATION SERVICES PVT. LTD Petitioner(s)

VERSUS

UNION OF INDIA & ORS. Respondent(s) (WITH IA No. 12877/2023 - CONDONATION OF DELAY IN FILING, IA NO. 12879/2023 - EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT, IA No. 12881/2023 - EXEMPTION FROM FILING O.T., IA No. 12870/2023 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES, IA NO. 12875/2023 - PERMISSION TO FILE SLP) WITH W.P.(C) No. 95/2023 (X) (WITH IA No. 18004/2023 - EX-PARTE STAY, IA No. 18009/2023 - EXEMPTION FROM FILING O.T.) SPECIAL LEAVE PETITION (CIVIL) Diary No(s). 3314/2023 (IX) (FOR ADMISSION and I.R. and IA No.18114/2023-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No.18115/2023-EXEMPTION FROM FILING O.T. and IA No.18109/2023-PERMISSION TO FILE SLP WITHOUT CERTIFIED/PLAIN COPY OF IMPUGNED ORDER) Writ Petition(s)(Civil) No(s).142/2023 (FOR ADMISSION and IA No.26710/2023-EX-PARTE STAY and IA No.26711/2023-EXEMPTION FROM FILING O.T. ) SPECIAL LEAVE PETITION (CIVIL) Diary No(s). 5164/2023 (IX) (FOR ADMISSION and I.R. and IA No.27171/2023-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No.27174/2023-EXEMPTION FROM FILING O.T. and IA No.27159/2023-PERMISSION TO FILE SLP and IA No.27169/2023-PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES) Date: 07-02-2023 These petitions were called on for hearing today. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR.

JUSTICE PAMIDIGHANTAM SRI NARASIMHA HON'BLE MR.

JUSTICE J.B. PARDIWALA For Petitioner(s) Mr. Mukul Rohatgi, Sr. Adv. Mr. D.S. Naidu, Sr. Adv. Ms. Fereshte Sethna, Adv. Ms. Anuradha Dutt, Adv. Ms. Suman Yadav, Adv. Mr. Chaitanya Kaushik, Adv. Mr. Abhishek Tilak, Adv. Ms. Praprati Kedia, Adv. Ms. Shivani Sanghavi, Adv. Mr. Suyash Bhave, Adv. Mr. Mohit Tiwari, Adv. Mr. Ashish Mishra, Adv. Mr. Shubham Airi, Adv. Mr. Aman Dutta, Adv. Ms. B. Vijayalakshmi Menon, AOR Mr. Gaurav Agrawal, Adv. Ms. Akriti Chaubey, AOR For Respondent(s) Mr. Tushar Mehta, SG Mr. Siddharth Dharmadhikari, Adv. Mr. Aaditya Aniruddha Pande, AOR Mr. Shrirang B. Varma, Adv. Mr. Abhikalp Pratap Singh, Adv. Mr. Bharat Bagla, Adv. Ms. Kirti Dadheech, Adv. Mr. Shantnu Sharma, Adv. Mr. Bhuvan Kapur, Adv. Mr. Rohit Khare, Adv. Ms. Shreya Saxena, Adv. Ms. Indira Jaising, Sr. Adv. Ms. Gayatri Singh, Sr. Adv. Ms. Nupur Kumar, AOR Mr. Paras Nath Singh, Adv. Ms. Ronita Bhattacharya Bector, Adv. Mr. Rohin Bhatt, Adv. Mr. Anand Dilip Landge, AOR Mr. Akshay Deshmykh, Adv. Mr. Avineesh Jha, Adv. UPON hearing the counsel the Court made the following O R D E R