Tripura High Court
Ms. Lipika Das (Sinha) vs Shri Narendra Modi on 28 March, 2017
Author: S. Talapatra
Bench: S. Talapatra
THE HIGH COURT OF TRIPURA
AGARTALA
W. P.(C) No.177 of 2017 & W. P.(C) No.86 of 2017
IN W.P.(C) No.177 of 2017
1. Ms. Lipika Das (Sinha),
wife of Sri Kanishk Sinha,
resident of Rabindra Sarani, Noapara, Dharmanagar,
Tripura (North), presently at Agartala, H.G.B. Road,
Agartala, District: West Tripura
2. Mr. Kanishk Sinha,
son of Sri Bimal Bihari Sinha,
resident of 122, Bidhanpally, P.O. Garia,
Kolkata-700 084, West Bengal, presently at Agartala,
H.G.B. Road, Agartala, District - West Tripura
......... Petitioners
-Versus-
1. Shri Narendra Modi,
Member of Parliament,
Varanasi Constituency-cum-Prime Minister of India,
care of Prime Minister's Office,
South Block, New Delhi - 110 001
2. The State of Tripura,
service through the Secretary,
Department of Transport, Government of Tripura,
New Capital Complex, Agartala- 799 001, Tripura (West)
......... Respondents
For the Petitioners : Petitioner No.2 in person For the Respondents : Mr. T. D. Majumder, GA IN W.P.(C) No.86 of 2017
1. Mr. Kanishk Sinha, son of Sri Bimal Bihari Sinha, resident of 122, Bidhanpally, P.O. Garia, Kolkata-700 084, West Bengal, presently at Agartala, H.G.B. Road, Agartala, District - West Tripura
2. Ms. Lipika Das (Sinha), wife of Sri Kanishk Sinha, resident of Rabindra Sarani, Noapara, Dharmanagar, Tripura (North), presently at Agartala H.G.B. Road, Agartala, District: West Tripura
-Versus-
2
1. The State of Tripura, service through the Principal Secretary, Department of Transport, Government of Tripura, Government Secretariat, West Tripura, Agartala, PIN: 799 001
2. The Joint Transport Commissioner, Office of the Joint Transport Commissioner, Government of Tripura, Astabol, West Tripura, Agartala, PIN: 799 001
3. The Director General of Police, Police Head Quarters, Fire Brigade Chowmuhani, P.O. Agartala, Tripura (West), PIN: 799 001
4. The Deputy Inspector General of Police, Southern Range, Police Head Quarters, Fire Brigade Chowmuhani, P.O. Agartala, Tripura (West), PIN: 799 001
5. The Deputy Inspector General of Police, Northern Range, Police Head Quarters, Fire Brigade Chowmuhani, P.O. Agartala, Tripura (West), PIN: 799 001
6. The Commissioner, Agartala Municipal Corporation, City Centre Complex, Paradise Chowmuhani, Agartala, Tripura, PIN: 799 001
7. The Executive Officer [corrected by the court], Dharmanagar Municipal Corporation, Tripura, Office Tilla, Algapur, Dharmanagar, Tripura- 799 253 For the Petitioners : Petitioner No.1 in person For the Respondents : Mr. T. D. Majumder, GA Mr. K. K. Pal, Advocate BEFORE THE HON'BLE MR. JUSTICE S. TALAPATRA Date of hearing and delivery : 28.03.2017 of Judgment & Order Whether fit for reporting : NO Judgment and Order (Oral) Heard Mr. Kanishk Sinha, the petitioner in person as well as Mr. T. D. Majumder, learned Government Advocate and Mr. K. K. Pal, learned counsel appearing for the respondent No.7 in W. P.(C) No.177 of 2017 and W. P.(C) No.86 of 2017 Page 2 of 8 3 W.P.(C) No.86 of 2017. As agreed by the learned counsel appearing for the respondents and the petitioner in person the writ petition being W. P.(C) No.86 of 2017 [Mr. Kanishk Sinha & Anr. vs. The State of Tripura & Ors.] and the writ petition being W.P.(C) No.177 of 2017 [Ms. Lipika Das (Sinha) & Anr. vs. Shri Narendra Modi & Anr.] are taken up together for the commonality in the controversy as raised in both the writ petitions. But this court has declined to issue any notice to the respondent No.1 in W.P.(C) No.177 of 2017.
02. Mr. Kanishk Sinha, the petitioner in person has at the outset submitted that now the controversy is confined to a very short premise inasmuch as by issuing the notice dated 13.08.2015, Annexure-R/7 to the counter affidavit filed by the respondents No.1 and 2 and the notice dated 22.04.2016, Annexure-R/8 to the said counter affidavit, the respondent-the Joint Transport Commissioner has stated the State Policy as under:
1. "............... sale of E-Rickshaw and E-Cart is prohibited in the state with effect from 8th October, 2014 as per M. V. Act, 1988. Hence all the E-Rickshaw and E-Cart have been sold after 8th October, 2014 are illegal and will not be considered for Registration and permit."
2. "............... sale and purchase of E-Rickshaw and E-Cart without offer of permit and Driving License of E-Rickshaw and E-Cart is totally illegal. The Transport Department will not take responsibility for sale and purchase E-Rickshaw and E-Cart without above stated documents.
Transport Department will also take legal action against those illegal purchasers and sellers of E- Rickshaw and E-Cart."
03. In this changed circumstances, Mr. Sinha, the petitioner in person has submitted that despite those notices dated 13.08.2015 and 22.04.2016 as issued by the Joint Transport W. P.(C) No.177 of 2017 and W. P.(C) No.86 of 2017 Page 3 of 8 4 Commissioner, Tripura, Agartala, illegal sale and purchase of E- rickshaw and E-cart without offer of permit and driving license are continuing unabated. He has further submitted that the respondents in their reply have clearly stated in para-6 inter alia as under:
"State Transport Authority and Joint Transport Commissioner published notifications on 13.8.2015 and 22.4.2016 in the local dailies warning sale and purchase of e-rickshaw and e-cart after 8th October, 2014 and without proper document. Therefore, prohibitive order published in the newspaper amounts to advisory as demanded by the petitioner from the State Government."
04. Mr. Sinha has submitted that earlier his representation in this regard was totally ignored by the respondents. He has brought further to the notice of this court the following averments made by the respondents No.1 and 2 in their reply:
"The Joint Transport Commissioner has issued letter to the Inspector General of Police (Law & Order) dated 21.8.2015 to prevent illegal selling of e- rickshaw and e-cart in the State of Tripura. A copy of the aforesaid letter dated 21.8.2015 is enclosed herein and is marked as Annexure-R/9 of this affidavit.
The Joint Transport Commissioner also lodged 2 Nos. of FIR in the concerned police station against two unauthorised e-rickshaw sellers. Copies of the FIR are also enclosed and they are marked as Annexure- R/10 & R/11 respectively of this affidavit."
05. Mr. Sinha in this regard has submitted that the enforcement of the prohibitory law is not adequate enough. He has urged before this court for passing direction on the respondents No.1 and 2 to make their enforcement mechanism stronger and effective so that the violations of provisions of law as well as their own prohibitory orders are not indulged by any unscrupulous person.
W. P.(C) No.177 of 2017 and W. P.(C) No.86 of 2017 Page 4 of 8 5
06. Mr. T. D. Majumder, learned GA appearing for the respondents No.1 and 2 has categorically stated that the State is doing their part and the State does not have any objection in upgrading the enforcement mechanism further.
07. As per direction of this court, Mr. K. K. Pal, learned counsel has produced the rules called 'Tripura Battery operated Rickshaw Rules, 2017' where there is provision of licence of the drivers of the battery operated rickshaws. Mr. Pal, learned counsel has submitted that by a notification dated 03.05.2014, the Executive Officer, Central Zone, Agartala Municipal Corporation asked a few persons to stop the production/sale of "Battery Operated Rickshaw" and close their shops until necessary licence received in this regard.
08. There is no controversy that by the Motor Vehicles (Amendment) Act, 2015, Section 2A has been incorporated. Section 2A reads as under:
"2A. e-cart and e-rickshaw - (1) Save as otherwise provided in the proviso to sub-section (1) of section 7 and sub-section (10) of section 9, the provisions of this Act shall apply to e-cart and e-rickshaw.
(2) For the purposes of this section, "e-cart or e-
rickshaw" means a special purpose battery powered vehicle of power not exceeding 4000 watts, having three wheels for carrying goods or passengers, as the case may be, for hire or reward, manufactured, constructed or adapted, equipped and maintained in accordance with such specifications, as may be prescribed in this behalf."
09. Sub-section 1 of Section 7 of the Motor Vehicles (Amendment) Act, 2015 provides that no person shall be granted a learners' licence to drive a transport vehicle unless he has held a driving licence to drive a light motor vehicle for at least one year. W. P.(C) No.177 of 2017 and W. P.(C) No.86 of 2017 Page 5 of 8 6 This provision has been made applicable for driving the E-cart or E- rickshaw. Similarly, sub-section 10 of Section 9 of the Motor Vehicles Act provides that notwithstanding anything contained in this section, the driving licence to drive the E-cart or E-rickshaw shall be issued in such a manner and subject to such condition as may be prescribed. In this juncture, Mr. Majumder, learned GA has drawn attention of this court that the Government of Tripura by making the amendment [Tripura Motor Vehicles (Sixth Amendment) Rules, 2015, Annexure-R/5 to the counter affidavit] has legislated the required provisions for this purpose. From the Notification dated 31.07.2015 (Annexure-R/5) it appears how the amendment in the Principal Act has been given effect to by prescribing the rules in the form of Tripura Motor Vehicles (Sixth Amendment) Rules, 2015, Annexure-5 to the reply filed by the respondents No.1 and 2.
10. Both these writ petitions are structured on the similar relief in respect of sale, purchase and operation on the roads without proper licence and without the safety measures as described and provided in the amended provisions of the Motor Vehicles Act. The petitioners are apprehensive on two aspects viz.
(1) there is rampant violations of the provisions itself and (2) by misusing of the rules called "Tripura Battery Operated Rickshaws Rules, 2014 as enacted by the Urban Development Department, some unscrupulous persons are plying the e-rickshaws/e-carts by way of sale and purchase and driving them illegally on the streets of Tripura. So far the enforcement of the amended provisions of the Motor Vehicles Act [as notified by the Government of India through the Ministry of Road Transport and Highways on W. P.(C) No.177 of 2017 and W. P.(C) No.86 of 2017 Page 6 of 8 7 13.01.2015] are concerned, there cannot be any controversy that after 08.10.2014 the sale and purchase of the E-rickshaw and E-
cart is entirely prohibited unless those conform to the specification as would be provided by the Central Government for purpose of manufacturing and without having the driving license or the registration from the competent authority in the Transport Department. In contravention, E-cart and E-rickshaw cannot be plied on the roads of the State. The notifications in these respects are already published by the competent authority i.e. the Joint Transport Commissioner, Tripura. The apprehension that despite these notifications, the enforcement is not adequate enough can only be alleviated by the Joint Transport Commissioner with assistance from the law enforcement authority. For this purpose, the joint transport commissioner is directed by this court to create an enforcement mechanism for a particular period to supervise enforcement of the changed law in the State of Tripura, so that the illegal business and operation of the E-rickshaw and E-cart cannot be perpetrated by any unscrupulous person.
11. Having observed thus and directed accordingly, these writ petitions are allowed to the extent as indicated above. However, this decision will have nothing to do with the writ petition filed by the petitioners in respect of their patent right before various High Courts. It is made further clear that if any violation is noticed even by the petitioners, they can file the complaint to the Joint Transport Commissioner directly and who in turn will take appropriate action on the said complaint. There shall be no reluctance to take punitive action against the persons who violate law.
W. P.(C) No.177 of 2017 and W. P.(C) No.86 of 2017 Page 7 of 8 8
Copy of this order be furnished to Mr. T. D. Majumder, learned GA appearing for the respondents No.1 and 2.
JUDGE MB W. P.(C) No.177 of 2017 and W. P.(C) No.86 of 2017 Page 8 of 8