Roppen Transportation Services Pvt Ltd v. State of Maharashtra

8. Section 95 gives the State Government the power to make rules as to state carriages and ‘contract carriages’. Section 96 confers a similar rule-making power on the State Government to make rules for the purposes of that chapter. These include, inter alia, the power to make rules regarding the documents, plates and marks to be carried by transport vehicles, the manner in which they are to be carried and the languages in which any such documents are to be expressed; the construction and fittings of, and the equipment to be carried by, stage and contract carriage, whether generally or in specified areas; the determination of the number of passengers a stage or contract carriage is adapted to carry and the number which may be carried; etc.

9. Section 2(7) speaks of a ‘contract carriage’: 2(7) “contract carriage” means a motor vehicle which carries a passenger or passenger or passengers for hire or reward and is engaged under a contract, whether expressed or implied, for the use of such vehicle as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicle or any person authorised by him in this behalf on a fixed or an agreed rate or sum— (a) on a time basis, whether or not with reference to any route or distance; or (b) from one point to another, and in either case, without stopping to pick up or set down passengers not included in the contract anywhere during the journey, and includes—

(i) a maxicab; and

(ii) a motor cab notwithstanding that separate fares are charged for its passengers;

10. An ‘aggregator’ under Section 2(1-A) is: 2(1-A) “aggregator” means a digital intermediary or market place for a passenger to connect with a driver for the purpose of transportation.”

11. Petitioner No. 1, Roppen Transportation Services Private Limited, (“Roppen”) began vehicle aggregator operations in October 2020. These were launched in various parts of the country, including Maharashtra.

12. On 27th November 2020, the Union Government Ministry of Roads, Transport on Highways (“MoRTH”) issued the Motor Vehicle Aggregator Guidelines 2020 (“the 2020 MoRTH Guidelines”). These are central to Mr Chinoy’s case and we will return to these shortly.

13. On 22nd December 2020, one Savina Crasto filed PIL (L) No. 9775 of 2020 in this Court. Dr Saraf has given us a copy of the Writ Petition. It is true that there was a mention about the aggregators operating without licenses or regulations. It is also true that the PIL was directed against one particular aggregator, Uber India Technology Private Limited, arrayed as the 3rd respondent to that PIL. The complaint of the petitioner seems to have been that there was no mechanism in place to receive or deal with complaints of users/passengers against the operators of the vehicle engaged by the aggregator. This is clear from various grounds in the Petition where Ms Crasto complained that there was no avenue for grievance redressal. Prayer (a) asks for a writ demanding that Uber India comply with statutory obligations including the conditions of an advisory for licensing compliance and liability of on demand Information Technology-based Transportation Aggregators “(taxis 4+1)”. The second prayer was a direction to the State Government to implement the 2020 MoRTH Guidelines.

14. On 3rd January 2022, the RTO, Pune wrote to the Cyber Crime Cell asking that appropriate action be taken against Roppen and other aggregators. In the meantime, the RTO, Mumbai had issued an order or notice on 2nd November 2020, and Roppen filed Writ Petition No. 421 of 2022 challenging it. Roppen sought directions to the State Government to consider its application for permission of bike taxi services. That petition came up before a Division Bench of this Court of which one of us (GS Patel J) was a member. A copy of the resultant order is at Exhibit “D” at pages 114 to 115 of the Petition. The Bench noted the statement on instructions that Roppen would make a representation to the authorities concerned. We requested the authorities to consider that representation at the earliest. We also noted the statement on behalf of Roppen that until a policy decision was taken, Roppen was willing to include a disclaimer on its app itself that such services were presently unavailable in Maharashtra. By a later order of 21st February 2022, at Roppen’s request, that Petition was allowed to be withdrawn.

15. On 11th February 2022, Roppen made detailed submissions before the Deputy Transport Commissioner of Maharashtra and indicated its willingness to comply with any additional conditions or measures that the Government stipulated.

16. On 15th February 2022, Roppen’s representation was rejected inter alia on the ground that there was no scheme then for bike taxis in Maharashtra.

17. On 7th March 2022, a Division Bench of this Court passed an order in Ms Savina Crasto’s PIL (L) No. 9775 of 2020. A copy of that order is annexed at pages 118 to 123 as Exhibit “F” to the Petition. As we have noted, the Crasto petition itself emanated from a complaint regarding a four-wheeler ride booked by Ms Crasto. The Government said that until its domestic rules, then proposed and said to be under consideration, were finalised, aggregators like Uber would be governed by the 2020 MoRTH guidelines in terms of the first proviso to Section 93(1). This submission was noted in paragraph 6 of the Division Bench order.

18. But what is interesting is the stand that the aggregator in question, Uber, took before the PIL Court. Uber argued that it was under no compulsion to obtain a license under Section 93(1) of the MVA since the State Government Rules were yet to be finalised. Uber said it was not required to obtain a license since, because of an earlier order of 30th June 2017, effect could not be given to Maharashtra City Taxi Rules 2017. The Division Bench repelled this argument. It noted in paragraph 8 that the statutory mandate was that no person could operate as an aggregator without a license. It observed that it was inappropriate for the State Government to permit aggregators without necessary licenses. But the Division Bench had a peculiar situation where rules were yet to be framed although the 2020 MoRTH Guidelines were in place. The Court expressed its displeasure that the State Government had permitted Uber to operate without insisting on compliance with the statutory requisite. The Bench then noted the possible prejudice that was likely to be caused if Uber services were stopped. Therefore, rather than restrain Uber from operating Maharashtra, the Court believed it was justified in granting an opportunity to it and other unlicensed aggregators to apply for licenses under Section 93(1).

19. Paragraphs 10 and 11 of this order at pages 122 and 123 are important and they read thus: “10. For such purpose, we direct the Transport Department of the State Government to issue appropriate notification in the Official Gazette forthwith and not later than 9th March, 2022 empowering each and every Regional Transport Authority in the State of Maharashtra to act as the Licencing Authority for grant of license under subsection (1) of section 93 of the Act. Since the 2020 Guidelines also refer to an Appellate Authority in paragraph 18, it would be prudent for us to direct that the provisions of section 89 of the Act, which is also part of Chapter V, may be followed in such a case. The State Transport Appellate Tribunal or similar such authority, by whatever name called, shall be the Appellate Authority. We are informed that the Chairman of the Motor Accident Claims Tribunal, Maharashtra, functions in the State as the State Transport Appellate Tribunal and, therefore, such Tribunal shall also be notified to be the Appellate Authority for the purposes of the 2020 Guidelines. In the notification to be published in terms of this order, the Transport Department shall indicate that all the aggregators operating in the State of Maharashtra may apply for license by 16th March, 2022. If any application is received by any Regional Transport Authority from the prospective licensees, earnest endeavour shall be made to convene urgent meeting of such Transport Authority to consider such application, as early as possible but not later than a fortnight from date of receipt thereof. In the event the concerned aggregator/prospective licensee agrees to comply with the conditions laid down in the 2020 Guidelines, issuance of license in its favour shall not be unnecessarily delayed. In the event any application is rejected, the concerned aggregator shall be at liberty to file an appeal under section 89 of the Act read with paragraph 18 of the 2020 Guidelines before the empowered Appellate Authority.

11. It is made clear that if no application is made before 16th March, 2022 by any aggregator or an application for license is rejected by the Licensing Authority, such unlicensed aggregator shall not be permitted to carry on further operations in the State of Maharashtra till such time an appropriate license is obtained by him/it. This condition should also form a part of the notification to be issued in terms of this order.”

20. Two days later, on 9th March 2022, the State Government through its Home Department issued a notification. A copy is at Exhibit “G” from pages 124 to 127. This makes specific reference to Ms Savina Crasto’s PIL and to the direction to empower the RTOs in Maharashtra to act as a licensing authority for considering and issuing aggregator licenses. Accordingly, the Government empowered all Regional Transport Authorities in Maharashtra as the competent authority (and resultantly the State Transport Appellate Tribunal as the Appellate Authority) for purposes of issuing a license to an Aggregator under Section 93(1). Aggregators were to apply before 16th March 2022. The notification said that if there was no application or if the application was rejected, the Aggregator would not be permitted to carry on operations in Maharashtra until the appropriate license was obtained. Roppen not only filed its application but recommenced it operations.

21. On 29th March 2022, the RTO, Pune wrote to Roppen saying that its application of 16th March 2022 was not in a proper form. That authority called upon Roppen to furnish particulars by 29th March 2022. Roppen did so. On 21st April 2022, Uber India’s SLP against the Division Bench order of 7th March 2022 in Savina Crasto’s PIL came up before the Supreme Court. The Supreme Court issued notice. The order was that status-quo as it existed that day would be maintained until further orders.

22. This order of status-quo has been the subject matter of some controversy although we note that Mr Chinoy today is clear that he bases no part of his submissions for final relief in terms of prayer clauses (a) and (b) on the Supreme Court’s status-quo order, notwithstanding that the prayer for interim relief is specifically predicated on this status quo order. Again, Dr Saraf has given us a copy of the SLP itself. The fundamental point taken in the Questions of Law and in the Grounds urged in the Special Leave Petition seems to have been that the Division Bench could not have made the 2020 MoRTH Guidelines applicable, and that in doing so it was impermissibly legislating.

23. As we shall presently see, this creates a somewhat peculiar disconnect in this particular matter.

24. The State Government was issuing 30-day provisional licenses to various Aggregators. They were all issued on 31st March 2020 for a period of 30 days, and all have expired since. Yet, Mr Chinoy says, these operators are all continuing to offer their aggregator services.

25. On 20th October 2022, the RTO, Pune told Roppen that its application of 16th March 2022 was rejected by an order of 1st April 2022 because its operations were allegedly illegal and were supposedly leading to a law and order situation with autorickshaw Unions threatening strikes and so on.

26. On 15th November 2022, the RTO (West), Mumbai wrote to Roppen saying that the Regional Transport Authority had directed that Roppen’s application be held in abeyance awaiting the Supreme Court’s final order in Uber India’s SLP against the Division Bench order in Savina Crasto’s PIL. That application by Roppen is said to be pending. Roppen went in Appeal to the Appellate Tribunal.

27. On 25th November 2022, Roppen filed Writ Petition NO. 14644 of 2022 challenging the RTO, Pune’s communication of 20th October 2022. On 29th November 2022, the impugned communication was set aside and the matter was remanded. On 30th November 2022, Roppen made an application with further documents to the RTO, Pune.

28. We will pass over the subsequent requests for time and the dates of the first, second and third hearings. We come directly to the impugned order of 22nd December 2022, a copy of which is at Exhibit “A” of the Petition from page 58. By this order the RTO, Pune rejected Roppen’s application for an aggregator license for two– and three–wheelers in Pune. The rejection was on diverse grounds of which Mr Chinoy emphasises two as being the principal grounds of rejection.

29. The Petitioners then filed this Writ Petition challenging the impugned order. In parallel, shortly thereafter, it also sought an intervention in Uber India’s SLP.

30. Before we proceed further, we note that there are two intervention applications in this Petition. Interim Application NO. 568 of 2023 is by the Rickshaw Panchayat Pune Pimpri Chinchwad. Interim Application No. 570 of 2023 is by the Maharashtra Rickshaw Panchayat and the Pune City Autorickshaw Federation and Samarth Seva Pratishthan. We are not inclined to allow these Interim Applications for intervention in the present Writ Petition. It seems to us self-evident that the concerns that are raised by these applicants are much wider. These concerns may include Roppen today, but they are not confined to Roppen. It is open to these interventionists to adopt appropriate proceedings. We say nothing on the merits of these intervention applications and expressly leave open all contentions.

31. Mr Chinoy’s submission is based on the 9th March 2022 notification issued by the 2nd Respondent, the Commissioner of Transport Motor Vehicles Department, empowering the Regional Transport Authorities in the State of Maharashtra to act as the licensing authorities for aggregators and requiring aggregators to apply for a license before 16th March 2022. His submission is that the moment such a notification was issued, whether it was pursuant to an order of a Division Bench of this Court or otherwise, the 2020 MoRTH Guidelines automatically came into play in Maharashtra. If it can be shown from these Guidelines, Mr Chinoy argues, that aggregators of two– and three–wheelers are allowed to operate, then there is no question of these operators being denied or being obstructed in operating only on the ground that their applications are pending. The 2020 MoRTH Guidelines allow non-transport vehicles to be used for transport purposes. Even that is specifically adopted by the MoRTH guidelines. If a particular application is rejected, then of course Roppen is required to challenge that rejection. But it simply cannot be that operations which are otherwise permissible and contemplated by the MoRTH guideline, and made applicable in Maharashtra, are stopped, obstructed or stalled by neither granting nor refusing/rejecting the applications for licenses. Mr Chinoy argues this most certainly cannot be done on the ground that some policy is awaited. Further, if any application is rejected on the ground that there is no policy or no set of Rules framed by the Maharashtra Government, then that takes us back precisely to the concern of the Division Bench in the PIL. This can never be a ground for rejection and any such rejection on this ground is, therefore, in his submission vitiated and is bound to be set aside.

32. In saying this, we understand Mr Chinoy very clearly now to say that — unlike what Uber India was saying in its SLP (that the Court could not have made the 2020 MoRTH Guidelines applicable) — the position is now different that the Guidelines have been made applicable by the State Government itself. Therefore, the MoRTH guidelines cannot be simply brushed aside or ignored. They must be given full voice. In other words, where Uber India said the 2020 MoRTH Guidelines could not be made applicable, Roppen now says that they do apply. Roppen’s stand seems to be diametrically opposite to the one Uber took in its SLP.

33. Three conditions must obtain, Mr Chinoy argues: (1) the 2020 MoRTH Guidelines must be in operation in the State, which they are; (2) the aggregator must have applied for a license before 16th March 2022, which Roppen has done; and (3) that application has not been rejected. If these conditions are met, then an aggregator can operate and its operations cannot be stopped. As long as its application is pending, it can operate. Its operations cannot be stopped on the basis that the application is pending awaiting some policy or rules.

34. It seems to us to come to this: First, Roppen does not actually need a license to be issued to it to operate. With the 2020 MoRTH Guidelines in place, the pendency of an application is enough. Second, the application cannot be rejected on the ground that a policy and rules have not been framed; i.e., that an aggregator license cannot be rejected nor can its operations be stopped on the ground that State Government rules and policies are not framed. This seems to us to be circular reasoning and inevitably means that in the 2020 MoRTH Guidelines have been applied in a State, no State rules or policies are necessary, no actual license is necessary for an aggregator to operate, and no application can be rejected for want of a policy or rules. So long as an application is made in time, State Government rules and policy are immaterial.

35. We turn immediately to the relevant portions of the MoRTH guidelines. We find these annexed at Exhibit “B” from page 87. Clause 15 on which the considerable emphasis is laid is at page 101. In Mr Chinoy’s submission, Clause 15 specifically allows the use of non-transport vehicles by aggregators. What does this mean? It tells us that a vehicle that is not otherwise licensed for transport of passengers may be used by an aggregator precisely for that purpose. Clause 15(1) sets out the broader policy or transportation policy objective behind this when it speaks of reduction traffic congestion and auto-mobile pollution, effective asset utilisation and so on. It is for this purpose that for aggregators and aggregators alone, private vehicles are allowed to be used essentially as motor cabs. This means that a private two–wheeler or three–wheeler can be used as a bike taxi or auto rickshaw service. Mr Chinoy also draws attention to Form III relatable to Clause 3(5) of the 2020 MoRTH Guidelines. This form specifically contemplates aggregators of autorickshaws, eautorickshaws, motor cabs, motor cycles or bus i.e. two– and three– wheelers.

36. It is no doubt true that the 2020 MoRTH Guidelines have provisions that demand compliance. For example Clause 7 has a list of compliances with regard to drivers. Clause 5 stipulates the conditions for the grant of license to an aggregator. Clause 4 is about aggregator eligibility. Clause 8 then speaks of vehicle compliances. There are provisions made for aggregators app and website compliances (Clause 9), safety considerations and compliances (Clause 10), regulation of fares (Clause 13), suspension (Clause 16), cancellation (Clause 17) and so on. Dr Saraf says that even within these guidelines there are requirements of stringent compliance. Clause 8(2) for example requires a valid permit. Further, he submits, Clause 15 has to be read in its entirety. We reproduce Clause 15 in full from page 101. “15. Aggregation of non-transport vehicles by Aggregators: (1) In furtherance of the Central and State Government’s objective of reduction in traffic congestion and auto-mobile pollution, and effective asset utilisation, non-transport vehicle pooling may be provided by Aggregator unless prohibited by the State Government. Rationale for such prohibition shall be specified in writing and accessible on the transport portal of the State Government. (2) In addition to the compliances mentioned above in these Guidelines, as may be applicable, the following shall be complied with by the Aggregator seeking to aggregate non-transport vehicles: (a) A maximum of four ride-sharing intra-city trips on a calendar day and a maximum of 2 ridesharing inter-city trips per week shall be permitted for each vehicle with the driver, integrated with the Aggregator. (b) The vehicle integrated under this Clause 15 shall obtain an insurance of at least Rs. 5 lakhs for the ride-sharers in the vehicle, other than the owner or driver integrated with the Aggregator.”

37. Dr Saraf says that this not a compulsion to a State Government to allow aggregator services. The clause contemplates a prohibition by the State Government. It is true that a rationale for the prohibition must be specified and must be uploaded to a website but there is no mandatory requirement for the State Government to grant an aggregator license.

38. Dr Saraf contests Mr Chinoy’s formulation of Roppen’s entitlement. He maintains that neither under the Division Bench order in the PIL nor by virtue of the status-quo Supreme Court order, nor by the bringing into effect in Maharashtra of the 2020 MoRTH Guidelines could the mere pendency of an application result in what is virtually a deemed license. The requirement is fundamentally that there can be no aggregator without a license.

39. What the Petitioner contends, Dr Saraf submits, is that it is the aggregator who will decide the terms and conditions; unless there is an express rejection, the aggregator can operate wherever, whenever and on whatever terms the aggregator thinks fit.

40. To assess the rival submissions on the impugned order, we need to consider it in full. Exhibit “A” is the original order in Marathi. A translation from page 75 is, to put it mildly, less than helpful. A slightly improved version (but not by much) is handed up by Mr Chinoy today. Since this not on Affidavit, we will append a copy to this order as well.

41. The order contains an elaborate description of the High Court order in Roppen’s Writ Petition No 14644 of 2022. Then it sets out the fact of the hearings. From internal page 4, there is a description of the number of “errors” that Roppen is said not to have yet rectified. Paragraph 3 of that portion says inter alia that registration numbers of 100 two wheelers and 100 rickshaws with driver and license numbers were provided. However, the necessary documents were not attached in the compilation that ran to 189 pages. Documents for only 65 new two wheelers were attached. Some 33 new autorickshaws were introduced into the list. Even amongst the newly introduced vehicles, many documents were found to be insufficient. These documents were all taken up for verification and scrutiny and they were found to be in error. There then follows from internal page 5 to page 8 a clause-by-clause tabulation referencing the 2020 MoRTH Guidelines and demonstrating non-compliance for two–wheelers. There is a similar table from page 9 regarding supposed non-compliances in regard to the application for three–wheelers. In paragraph 5 at page 13, it is noted that Roppen did not submit a list of two–wheelers in the transport category.

42. We reproduce paragraphs 5 to 14 from pages 13 to 15. They read thus: “5. According to S.O. 1248 (E) dated 05/11/2004, vehicles are classified as transport vehicles (transport) and non-transport vehicles (non-transport) depending on the sue of the vehicle. Accordingly, “Motorcycle use for hire to carry one passenger on pillion and motorised cycle rickshaw for goods or passenger on hire” there is a notification to register in the transport cadre. Accordingly, Roppen has not submitted the list of two-wheelers in the transport category. However, the vehicles used for passenger transport through them belong to the private sector. Therefore, Section 66/192(a) of the Motor Vehicles Act 1988 is being violated.

6. The applicant has submitted an application for a Bike Taxi and a three-wheeler taxi. However, no such bike taxi scheme has been implemented by the government or the state transport authority in the state of Maharashtra. A bike taxi licence has also not been issued. Also, as per Section 4(3) of the Motor Vehicles Rules, 1989, a driver must have a PSV badge to drive a public service vehicle.

7. There is currently no state government policy on licensing bike taxis. Also, there is no fare structure policy for bike taxis.

8. The applicant has not fulfilled some of the conditions mentioned in the above-mentioned table in the motor vehicle aggregator guidelines 2020, and the app-based passenger transport service through private twowheelers though M/s. Roppen Transportation Services Private Limited is currently being illegally operated without any aggregator license being issued to him.

9. During the hearing in the matter of Writ Petition NO. 421/2022 dated 20/01/2022 filed in the Hon’ble High Court, Mumbai as per the direction of the Hon’ble High Court, Mumbai until the policy decision regarding the bike taxi service is taken, the plaintiff (Mr. Roppen Transportation Services Pvt Ltd) must display a disclaimer on their app saying, “SUCH SERVICES ARE PRESENTLY UNAVAILABLE IN MAHARASHTRA”. However, this directive is continuously being violated by the applicants.

10. Public Interest Litigation (L) No. 9775 of 2020. According to the order dated 07/03/2022, instructions have been issued that if the aggregators do not apply before 16/03/2022 or if the application is rejected by the authority, such unlicensed aggregators will not be allowed to continue business in the state of Maharashtra. Government of Maharashtra, Home Department. By notification dated 09/03/2022, the aggregator has made it mandatory to obtain the license for passenger transport through the app and website from the competent authority under the Central Government’s Motor Vehicles Aggregator Guidelines 2020.

11. In Writ Petition No. 14644/2022 filed before the Hon’ble Bombay High Court, M/s. Roppen Transportation Services Pvt Ltd Hon’ble High Court on 29/11/2022 has ordered reconsideration of the application given for obtaining aggregator license. Accordingly, the applicant submitted an application to the Regional Transport Authority on 30/11/2022 for obtaining an aggregator license. But the applicant has not submitted the necessary document along with the said application fulfilling the conditions mentioned in the aggregator policy. The applicant was asked from time to time to complete the documents by giving sufficient time during the hearing.

12. Accordingly, the hearing of the above matter by the Regional Transport Authority followed the principle of natural justice and the applicant was given sufficient opportunity to present this views. But it has been pointed out that the applicant in the said case is only making manoeuvres to delay the hearing by filing operational documents. The applicant has not fully complied with the provisions of the Motor Vehicles Act 1988 and the motor

13. The applicant knew the terms and conditions under the Motor Vehicle Aggregator Guidelines 2020 for obtaining the said license from the date of application dated 16/03/2022 (first application) for obtaining the said license. The applicant had stated that he had submitted the application on 29.03.2022 in the Hon’ble Court during the hearing of Petition NO. 14644/2022. However, he had deposited only DD in this office dated 29.03.2022. According to the applicant, even at the time of application dated 29/03.2022, he was aware of the terms and conditions contained in the said guidelines. Therefore, the applicant was expected to file his above re-application dated 30/11/2022 only after fulfilling the terms and conditions contained in the said guidelines. Even so, the principle of natural justice has been followed by giving sufficient opportunity to the applicant to file his arguments an documents during the hearing.

14. The applicant has not submitted the list of twowheelers belonging to the transport cadre. In exercise of the powers conferred under Section 93(1) of the Motor Vehicles Act, 1988 by the Government of Maharashtra to the Regional Transport Authorities in the State as competent authorities for issuing licenses to aggregates and to The State Transport Appellate Tribunal under Section 93(1) has been authorized as the Appellate Authority. According to Section 89, 90 of the Motor Vehicle Act, 1988 and Rule 97 of the Maharashtra Motor Vehicle Rules, 1989, the State Transport Appellate Tribunal, Mumbai can submit an appeal to the State Transport Appellate Tribunal within 30 days regarding the application rejected by the Regional Transport Authority.”

43. The errors remained unrectified according to the 9th Respondent. The final order noted the various guideline numbers and said that there was insufficient compliance. This was separately stated for two–wheelers and three–wheelers. It is on this basis that application was rejected.

44. Mr Chinoy emphasizes paragraphs 6 and 7 regarding the lack of a bike taxi scheme and the want of State Government policy. He would have it that this is the principal and even only ground for rejection. As to the noted non-compliances, Mr Chinoy says that some of the demands are meaningless and there can never be compliance because these have been blindly applied to the Petitioner’s case. The Petitioner submits for example in a tabulation below ground ‘S’ that many of the guidelines are incapable of compliance or have been applied without thought.

45. There are some unexplained incongruities in this response in regard to guidelines 7(1), which speaks of a badge and police verification in sub-item (b) and (g). The answer from Roppen’s seems to be that there are no guidelines and therefore there cannot be insistence on this. Roppen is clearly speaking of the want of the State Government guidelines for these purposes. It is difficult to see how both arguments can coexist. On the one hand, the submission is that the rejection could not have been on the ground that there were no guidelines and there was no policy. But when a non-compliance is pointed out, the answer is to say that there is an absence of a policy. We find this again in regard to guidelines 7(2)(c), 8, 9(14) and importantly even in 13(6) relating to regulation of fares. The suggestion is that since there is no fare regulation or no policy there can be no allegation of non-compliance.

46. But that surely is Dr Saraf’s point to begin with. It is this inconsistency that he says can never be resolved in this fashion. Effectively, what Roppen seeks now is to determine its own fares, its own policies and the terms and conditions under which it will operate, as also to selectively decide compliances.

47. This inconsistency, Dr Saraf submits can be demonstrated with just a few examples from the tabulation below ground ‘S’ in the Petition itself. For example, the requirement of insurance is that there has to be a heath insurance for each driver. Another requirement is that no driver with an aggregator can drive for more than 12 hours in the aggregate as a matter of safety. The response is that Roppen provides accident insurance of Rs. 5 to 10 lakhs on the initiation of a ride. But has to be read while keeping in mind the fact that what is being aggregated, or sought to be aggregated, are nontransport vehicles for transport purposes. Vehicles designated as non-transport vehicles are covered by insurance policies that protect the vehicle and the registered owner/driver of that vehicle. Typically, these policies are said to have an exception if such a vehicles is used for transport purposes. The question is not only about coverage of the passenger but whether the existing policy that covers the vehicle is rendered void when it is used for an unlicensed transport purpose. Similarly, as regards health insurance, the response is that this would require the generation of medical reports and this cannot be done “on the spot”. It is difficult to understand what, if anything, is to be made of this. There is a requirement to ensure that drivers who may service more than one aggregator do not operate for more than 12 hours continuously. That is clearly a safety concern. The answer seems to be that since there is no datasharing mechanism between different aggregators, compliance with this requirement is not possible. Similarly, when it comes to police verification of driver identity, the requirement is that the police must be provided with access to the aggregator’s Application Programming Interface or API. The police authority must grant a certificate of good character without a criminal record to the driver. The response is that Roppen is willing to provide access to the police. This was said in writing. Again, ‘absent any specific guidelines’ or support from the State Government further compliance is said to be not possible.

48. Dr Saraf’s submission is, therefore, that what Roppen essentially seeks is a deemed licence to continue to operate irrespective of whether it complies with any of the conditions even of the MoRTH 2020 Guidelines. This is, in his submission, inconceivable.

49. He points out, not for the first time, that Roppen has no licence any where for any class of vehicle.

50. Mr Chinoy’s instructions are to state that other aggregators are, in the meantime, operating without hindrance. Dr Saraf counters this by saying that those are illegal and in any case aggregation of non-transport vehicles would now fall under the 19th January 2023 notification. The Government is taking or has taken action against illegal aggregators. The fact that there is some other illegal aggregator cannot in law create any equity in favour of the Petitioner.

51. As to Mr Chinoy’s submission that the impugned order at Exhibit “A” was based solely or chiefly on the lack of a policy, we find that this a reference to paragraphs 6 and 7. But these must be read fairly and not merely by picking out certain phrases or clauses such as “no such bike taxi scheme has been implemented”. In Clause 6, the RTO, Pune has indeed so noted that there is no bike taxi scheme in implementation. But he has also noted that there is a further violation on non-compliance. Again, in paragraph 7 while noting the absence of a State Government policy, the RTO has noted that there is no fair structure defined. What this means is that each aggregator is presumably left to decide for itself what it will or will not charge and this cannot be subjected to the Government or regulatory oversight.

52. The extension of this Dr Saraf says is the likelihood of completely alarming situation. Theoretically speaking, for example, if autorickshaws are not permitted in the island city, then on the construct that Mr Chinoy commends — i.e., that an aggregator has, because of the pendency of an application an operating licence, it will have an entitlement to run a three-wheeler even in the Island City although commercial or licenced autorickshaws are prohibited there. Mr Chinoy answers this by saying that it is not Roppen’s submission or suggestion that its aggregators will operate in defiance of established traffic or traffic control laws. All those must necessarily be observed. The question is of a permission to operate, not a licence to operate contrary to established rules and regulations.

53. Even if that is so, and having carefully considered rival submissions, we are unable to see how any aggregator like Roppen can lay claim to be allowed to operate firstly without a license and secondly without complete compliance with the very guidelines that the aggregator invokes. It is also not correct in our view, having seen the impugned order, to say that the rejection was solely on the basis of the want of a policy or a bike taxi scheme. Undoubtedly those were two factors, but they were by no means the only factors. The impugned order would have to be read along with the preceding paragraphs, noting and observations.

54. There is one other aspect which we believe we must very briefly turn our attention. On 13th January 2023, we passed the following order: “1. We have heard the matter at some length. Dr Saraf has tendered some material, which we will need to consider. He also mentions that a special committee has been constituted urgently in the last day or so to examine the terms and conditions to be made applicable to a ‘bike taxi’ aggregator service, and even if such a service ought to be permitted at all. The committee needs time to consider the material and take advice.

2. Ms Sethna has a further Affidavit. It is to be filed in the Registry. We have briefly considered this Affidavit. We have also considered some of her submissions, namely, that the Petitioner is offering its two wheeler bike taxi aggregator service in a hundred cities across the country and actually has a license in at least two states and provisional license in two more. We do not know the terms of those licenses. We will require them to be produced on the next occasion. These are also to be placed in a second further Affidavit which is to be filed and served by Tuesday, 17th January

2023.

3. We list the matter first on the supplementary board on 20th January 2023. Both sides are put to notice that we will endeavour to dispose of the Petition on that date at the stage of admission.

4. The concern is about ongoing services being offered by the Petitioner in Maharashtra.

5. On instructions Ms Sethna makes a statement that all services of the Petitioner in Maharashtra will be suspended and made unavailable until the end of the day on 20th January 2023. She fairly states that the Petitioner offers, in addition to bike taxi aggregator services, delivery services and auto rickshaws where the Petitioner does not have licenses from the State Government for any of these services as yet. However, there are pending applications for one or more of these services. There also some rejections.

6. We accept the statement made by Ms Sethna on instructions. All contentions are expressly kept open. The statement is accepted as one made on a without prejudice basis. However, having regard to the nature of the services and the fact that they are offered on a mobile phone app, we do not want any misunderstandings or complications. We will, therefore, require that the app’s availability in Maharashtra has to be suspended immediately. It is not to await the transcription and uploading of this order. A representative of the Petitioner is present in Court to instruct Ms Sethna. After speaking with him Ms Sethna confirms that the app will be suspended for all services of the Petitioner in Maharashtra by 1.00 pm today. We accept the statement. We require a confirmation and will have the matter called out at 1.15 pm.

7. List the matter first on board on the supplementary board of Friday, 20th January 2023. At 1.15 pm.

8. Ms Sethna confirms that the Petitioner’s app is now inoperative for Maharashtra in compliance with the previous directions.

9. For the convenience of customers and consumers who may have already booked or engaged services before

1.00 pm today, the Petitioner may fulfil those obligations. However, it will not accept any further bookings after 1 pm today. This exception is only for the convenience of consumers.”

55. Dr Saraf tells us that against this order a SLP was filed and that matter has been posted on Monday, 23rd January 2023. Mr Chinoy clarifies that the ambit of that SLP is only in regard to a Maharashtra-wide restraint even if this was on a statement made by the Petitioners. The Petitioners say they were “constrained” to make that statement. Mr Chinoy submits that his Petition and arguments today are restricted to the impugned order at Exhibit “A” of 22nd December 2022. As to other areas, cities and pending licenses, those are not the subject matter or part of the conspectus of these Petitions and consequently the Petitioners could not have been asked to make a statement for other areas at all.

56. While we note this submission, we believe it is important that some part of the factual matrix to our 13th January 2023 order be noted for what it is worth. The matter was listed at Sr. No. 903 on the supplementary board that day. We were prepared to proceed with the matter. Dr Saraf sought some time. But so did the Petitioners. It is then that we were told that Roppen was operating across the country and had licenses in just two States and a provisional license and in perhaps two more but had no license whatsoever in Maharashtra. It is at this point that we said that we would in those circumstances proceed with the hearing of the matter or, if both sides agreed on a date, until the next date operations would have to be suspended since they were clearly without a license. It is with this factual background that the statement that we have noted came to be made. The statement was in any case limited until today.

57. Mr Chinoy is right in this much. That statement obviously cannot continue beyond the disposal of the Petition. Whatever may happen in other areas, cities or jurisdictions of various other RTOs is not our concern in the present Writ Petition. If the Government takes action, no doubt Roppen will do whatever it is advised to do in that regard as it will undoubtedly do in regard to the 19th January 2023 notification. We are concerned only with the impugned order at Exhibit “A” of 22nd December 2022.

58. For Mr Chinoy to succeed in this, he must, as he himself says show that the order is completely illegal and could never have been passed. In other words, he must be able to demonstrate that the want of a policy or a bike taxi scheme is insufficient ground to reject his application. But he must also go further and show unequivocally that this was the only ground for rejection. As we have noted as some length above, that is in fact not so. There is a detailed consideration of the various deficiencies and inadequacies in Roppen’s application itself.

59. We are also not satisfied that the want of a considered State Government policy is something that can be leveraged by aggregators to their advantage by this generalised invocation of the 2020 MoRTH Guidelines. As we have noted, the guidelines themselves contemplate the possibility of a prohibition. The Guidelines do not say that they have to be applied by a State Government without any latitude being offered to the Government to make appropriate regulations rules or frame polices in regard to the various factors that have undoubtedly to be borne in mind.

60. Where these aggregators are allowed to operate, on what terms and conditions under what conditions of service, subject to what regulations, checks, verifications and fare structures, are matters that can neither be assumed nor left for self-determination by the aggregators.

61. In this view of the matter, we see no merit in the Petition. It is rejected. There will be no order as to costs. (S. G. Dige, J) (G. S. Patel, J)