Nipun Malhotra v. Government of NCT of Delhi

9. We may take note of the fact that during the course of hearing, submissions, factual in nature, were made in support of the contentions as is indicated hereinabove and we have crystallized the same and have indicated the submissions made before us in a summarized form as in our considered view for deciding the issue involved in the matter, the same is sufficient enough. Various other contentions with regard to the standard floor buses being procured for the present are required to run in routes falling in rural areas, are villages and, therefore, it is not practical to ply these buses in remote rural areas, cost effectiveness, cost of maintenance etc. were also canvassed during the course of hearing on behalf of the Government and the Delhi Transport Corporation to justify their action. If required, we will refer to the same in detail during the course of consideration.

10. Having heard learned counsel for the parties at length, we find that the Disability Act, 2016 was enacted by the Parliament to give effect to the United Nations Convention on Right of Persons with Disabilities and for providing statutory provisions for matters connected thereto and incidental thereto. One of the reasons for enacting the law was to provide easy accessibility to persons with disability. Section 40 of the Disability Act, 2016 contemplates that the Central Government shall, in consultation with the Chief Commissioner, formulate rules for differently abled persons laying down the standards of accessibility for physical environment, transportation, information, communications etc. Section 41 mandates the appropriate Government to make suitable measures so as to provide access to all modes of transport that conform the design standards including the retrofitting old modes of transport wherever technically feasible. Section 46 stipulates the provisions for bringing into force the requirement of accessibility formulated under Section 40 within a period of 2 years from the date of notification of the Rules. Section 100 gives power to the State Government to bring into force Rules for carrying out the provisions of the Act and sub-Section 2(g) of Section 100 contemplates that Rules for Persons with Disability laying down the standard of accessibility under Section 40 should be formulated.

11. By virtue of the powers conferred on the Central Government under Section 100, the Disability Rules, 2017 has been enacted and Rule 15 under Chapter VII pertains to matters regarding accessibility and sub-Rule (b) of Rule 15 reads as under:- “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.”

12. By virtue of the aforesaid and in view of the provisions of the Motor Vehicles Act and rules by incorporation the Statutory provisions have been brought into force and the statutory provisions which include the AIS 052 are notified which have been referred to in extensio in the judgment by the Hon‟ble Supreme Court in the case of Rajive Raturi (supra). If we go through the said judgment, we find that in the said case, the issue before the Hon‟ble Supreme Court, as is made out from para-1, is that the petitioners therein who were visually differently abled persons and residents of Gurgaon (now Gurugram) and who had to go all the way from Gurugram to Delhi to work, had filed the writ petition in public interest, to provide to them proper and adequate access to public places. The issue involved in the case of Rajive Raturi (supra) was with regard to providing accessibility of public places to persons, differently abled and not only the transport facility. In the said judgment, the Hon‟ble Supreme Court refers to Section 40 of the Disability Act, 2016 and thereafter takes note of the duty of the State to protect the right of differently abled persons and the various issues involved in the matter, the assurance given by the Solicitor General, who appeared for the Union of India, that the work is in progress and the Union of India has taken various steps to make lives of such disabled persons as comfortable as possible. Thereafter, the updated status of various issues as pointed out by the Union of India in their affidavit filed and report submitted on 12th April, 2017 was taken note of in tabulated manner and

┌─────────────────────────────────────────────────────────────────────────────────────────────────┐
│

┌───────────────────────────────────────────────────────────────────────────────────────────────────┐
│ Sl.    Targets set under          Action Taken             Petitioner‟s remarks                   │
│ No.    AIC                                                                                        │
├───────────────────────────────────────────────────────────────────────────────────────────────────┤
│ 7.     10% of Government          Ministry of Road         The      statutes   cover all public   │
│        owned           public     Transport         and    transportation as well as all bus      │
│        transport carriers are     Highways has issued      depots and bus-stands. The AIC,        │
│        to be made fully           instructions to the      therefore, deals with only a small     │
│        accessible by March        State and Executive      fraction of the work to be done.       │
└───────────────────────────────────────────────────────────────────────────────────────────────────┘

15. Thereafter in para-35, it is seen that the matter was directed to be listed after a period of 3 months and the observations made in para-35 indicates that the Supreme Court is monitoring the matter.

16. From the ultimate directions issued in para-34 as is reproduced hereinabove it is seen that the only direction issued by the Supreme Court in the case of Rajive Raturi (supra) with regard to making accessibility in public transport, i.e., direction 34(6)(vii) is that 10% of Government owned public transport carriers are to be made fully accessible by March, 2018. Once on a complete reading of the judgment rendered by the Supreme Court in the case of Rajive Raturi (supra), we find that this is the mandamus issued by the Hon‟ble Supreme Court. We are unable to accept the contention of the petitioner to say that the law laid down in the case of Rajive Raturi (supra) was to make all public transport user friendly or accessible to the differently abled persons. In our considered view the law laid down in the case of Rajive Raturi (supra) will not and does not mandate any such direction. That apart, the observations made in the interim order passed on 1st June, 2018, reference to the order of this Court in Court on its own motion vs. Union of India and the judgments prior to Rajive Raturi (supra) and due to coming into force of the statutory provisions, as also the orders in SLP (C) 7528/2007 K.R.Mangalam World School vs. Union of India, would go to show that these petitions were rendered infructuous after the statutory provisions were brought into force by amending the statutory provisions. As far as the statutory provisions are concerned, they have been incorporated by amendment in the statute as indicated hereinabove and AIS 052 has in fact by incorporation is made part of the statutory rule and nothing is brought to our notice on the basis of which we can hold that these statutory provisions have been challenged. Once by promulgation of a rule under the statute, provisions have been made prescribing the standards which are required to be followed for making effective the mandate of Section 40 of the Disability Act, 2016. In the absence of any challenge being made to the said Rule this court cannot interfere, and issue directions contrary to the rule which only mandates 10% of the public transport vehicles to be made user friendly and direct for making all the buses user friendly. At this stage, it would be appropriate to take note of the detailed interim order passed by this Court wherein various findings were recorded and heavy reliance on which was placed by the learned counsel appearing for the petitioner to say that the interim order itself decides various issues and after interpreting the judgment in the case of Rajive Raturi (supra) when the interim order speaks about all buses to be user friendly and low floor, there cannot be any further deviation now from this finding.

17. In our considered view, we cannot accept the aforesaid contention. At this stage, we may take note of the GSR 895E dated 20th September, 2016 and the amendments made in the Central Motor Vehicle Rules, 1989 by virtue of the powers available with the Central Government under sub- Section (1) of Section 100 of the Motor Vehicles Act and by incorporation, the provisions of AIS 052 revised one being made part of the Central Motor Vehicles Rules, 1989 with effect from 1st January, 2018.

18. As far as the effect of the interim order passed on 1st June, 2018 and the findings recorded therein are concerned, even though it refers to the judgments in the case of Rajive Raturi (supra) and the provisions of the AIS 052, ultimately the finding recorded is that the statutory rules are beyond the legislative powers of the Government, it violates the mandate of Section 41 of the Disabilities Act, 2016 and it goes to declare it as prima facie unsustainable and cannot stand. The question would be as to whether the aforesaid finding recorded by the Bench on 1st June, 2018 while considering the prayer for interim relief and directing for stay of procurement of all standard floor buses is binding on us and we are required to issue a mandamus based on the same.

19. Even though we were taken through the detailed order and finding recorded in the interim order passed on 1st June, 2018 but taking note of the admissions made before us, the observations made by the Supreme Court in the order passed on 2nd August, 2018, the interim findings recorded on 1st June, 2018 is only a prima facie assessment and it is not a final conclusion or determination of the issues in question and, therefore, we can proceed to decide the issues based on the submissions made before us and the material available on record.

20. During the course of hearing when specific question in this regard was posed to the counsel, both counsel for the petitioners and the respondents fairly stated that they are only prima facie finding and the learned counsel for the petitioner submits that he is relying upon the same only to canvass a contention as to what is the law laid down by the Supreme Court in the case of Rajive Raturi (supra) and what has been observed about the same in the interim order. In our considered view, with respect, we want to defer from the observations made, even though prima facie in the nature, by the Bench on 1st June, 2018 and for the reasons recorded hereinabove and the directions contained in the case of Rajive Raturi (supra) in para-34, we are of the considered view that the law laid down by the Supreme Court in the case of Rajive Raturi (supra) does not lay down any such principle as is indicated by the counsel appearing for the petitioner. It is crystal clear on a plain reading of the law laid down in the case of Rajive Raturi (supra) that it accepted the stand of the Government that by March, 2018, 10% of the buses being plied by the public transport undertakings would be made user friendly for the differently abled persons and nothing more.

21. That apart, the order passed on 1st June, 2018 is an interim order and if we take note of the detailed observations made by the Supreme Court on 2nd August, 2018 as is reproduced hereinabove, we find that the interim order passed on 1st June, 2018 was challenged before the Supreme Court, the detailed order was taken note of, the case of the petitioner as set out in the writ petition was considered, the judgment in the case of Rajive Raturi (supra) was also taken note of and the directions issued in clause (vii) was also reproduced and the observations made is “that from the aforesaid, it is clear that the statutory provisions only makes a provision for 10% of the Government owned public transport to be fully accessible by March, 2018”, the order further goes on to say that this Court (i.e., the Supreme Court) has directed all modes of transport to be disabled friendly. Thereafter, the Hon'ble Supreme Court analysed the order passed in the case of Rajive Raturi (supra) and holds that the direction which is given is to the effect that the Government to lay down the plan giving the dates by which the task indicated by the Supreme Court would be undertaken and the observations would clearly show that there was nothing that all procurement have to be of low floor buses only. Hon‟ble Supreme Court further goes on to say that the observations made cannot be read that any procurement hereinafter has to be limited only to low floor buses. On the contrary, the observations of the Hon‟ble Supreme Court indicates that the Government was directed to submit a plan in this behalf. The order further indicates that in pursuance of the order passed by the Supreme Court, the Central Government and the State Government had submitted their plans and these aspects are being taken care of and monitored by the Hon'ble Supreme Court.

22. We may further take note of the fact that the order passed on 2nd August, 2018 by the Hon'ble Supreme Court is by the same Bench which had considered and issued the directions in the case of Rajive Raturi (supra) but at the same time, the Hon'ble Supreme Court takes note of the fact that it has to be kept in mind the practical difficulties that may be faced by the State Government and the Central Government in procuring only low floor buses. The difficulties have been noted and considering the same, for the present permission was granted to procure 500 buses. That apart, the Hon'ble Supreme Court took note of the fact that in the tenders issued earlier the Government of NCT of Delhi could not procure low floor buses, hence they have decided and expressed their willingness to set up hydraulic lifts/mechanical lifts at their own cost and an affidavit in this regard was filed before the Supreme Court and even before us to say that even now for all standard floor buses procured, the hydraulic/mechanical lifts would be installed. The Supreme Court further takes note of the fact that 66% of the buses in Delhi are at present low floor buses. Taking note of all these circumstances, the only conclusions that can be arrived at is that there is nothing in the case of Rajive Raturi (supra) to indicate that a mandamus was issued mandating all buses to be made or procured to be low floor buses. On the contrary, the mandamus is to procure at least 10% buses to be low floor buses by March, 2018 and thereafter in a phased manner under the monitoring of the Hon'ble Supreme Court further action is to be taken. In view thereof the contention of the petitioner based on the law laid down in the case of Rajive Raturi (supra) cannot be accepted. For the present, we find from the counter affidavits filed by the respondents that in the NCT of Delhi there are 1648 standard floor buses in addition to the present proposal is to procure 1000 more standard floor buses which will make the number of standard floor buses to 2648. There are 3781 low floor buses and the percentage of low floor buses is 69.6%, before procuring 1000 buses and after procuring 2000 standard floor buses, the percentage would come to 50.9% and there is a proposal for procuring 1000 more low floor electric buses which would make the percentage of low floor buses to 56.7%. If that be the position, we have no hesitation in holding that the contention of the petitioner that all buses to be procured should be standard floor buses is unsustainable and this is not made out on considering the judgment and law laid down by the Supreme Court in the case of Rajive Raturi (supra), what is the mandate by the said law and the rules framed, statutory in nature are that at least 10% of the buses to be procured should be low floor buses by March, 2018. Thereafter, further compliance and action to be taken was to be submitted to the Supreme Court and the Hon'ble Supreme Court is monitoring the matter.

23. That being the factual position, now we see no reason as to why we should issue a mandamus and prohibit the Government of NCT of Delhi from procuring further buses in pursuance of the tender in question, that is, 1000 standard floor buses. That also when the Government agrees in the affidavit before us as also before the Supreme Court that all standard floor buses now to be purchased would be provided and fitted with hydraulic/mechanical lifts to facilitate accessibility to differently abled person.

24. Taking note of all these factors, we are of the considered view that for the present no further directions can be issued. The petition filed by the petitioners cannot be considered and the mandamus/prohibition as sought for cannot be granted. The petition being devoid of merits stands dismissed.

CHIEF JUSTICE

V. KAMESWAR RAO, J