Delhi High Court
Nipun Malhotra vs Government Of Nct Of Delhi & Ors on 22 October, 2018
Author: V. Kameswar Rao
Bench: Chief Justice, V. Kameswar Rao
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 9643/2017, CM Nos. 39251/2017, 12571/2018, 14652/2018
& 27723/2018
Reserved on : 10th October, 2018
Pronounced on: 22nd October, 2018
NIPUN MALHOTRA ..... Petitioner
Through: Mr.Jai Dehadri, Adv. with
Mr.Siddharth Arora, Adv.
Mr. Aman Panwar & Mr. Sangam Kumar, Advs.
for P-3
Versus
GOVERNMENT OF NCT OF DELHI & ORS ..... Respondents
Through: Mr. Dhruv Mehta, Sr. Adv. with
Mr.Sanjoy Ghose, ASC & Ms. Urvi Mohan, Advs.
for GNCTD
Mrs. Avnish Ahlawat, Standing Counsel &
Mr.Sameer Vashisht, ASC with Mr.N.K. Singh &
Ms. Palak Rohmetra, Advs. for DTC
Mr. Arjun Pant, Adv. for DDA
Mr. Ajay Digpaul, CGSC with Ms. Madhuri
Dhingra, Adv. for R-7
Mr. Sandeep Narain & Ms. Anjali Agarwala,
Advs. for R-10
Mr. Sushil Dutt Salwan, Mr. Aditya Garg &
Mr.Arjun Garg, Advs. for Antony Road Transport
+ W.P.(C) 5142/2018
NIPUN KUMAR MALHOTRA ..... Petitioner
Through: Mr.Jai Dehadri, Adv. with
Mr.Siddharth Arora, Adv.
Versus
W.Ps.(C)9643/2017 and 5142/2018 Page 1 of 27
GOVT. OF NCT OF DELHI & ANR. ..... Respondents
Through: Ms. Dhruv Mehta, Sr. Adv. with
Mr.Sanjoy Ghose, ASC & Ms. Urvi Mohan, Advs.
for GNCTD
Mrs. Avnish Ahlawat, Standing Counsel &
Mr.Sameer Vashisht, ASC with Mr.N.K. Singh &
Ms. Palak Rohmetra, Advs. for DTC
Mr. Sushil Dutt Salwan, Mr. Aditya Garg &
Mr.Arjun Garg, Advs. for Antony Road Transport
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE V. KAMESWAR RAO
JUDGMENT
Rajender Menon, Chief Justice
1. The petitioner has invoked the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India and has filed this public interest litigation seeking a direction/mandamus to the respondents to explain the rationale behind its decision to procure non-disabled friendly public transport standard floor buses. It is the case of the petitioner that he is a public spirited individual who himself and through his non-profitable foundation, namely, the Nipman Foundation is actively involved in the field of disability rights, claiming to be one of the India‟s leading disability rights activists and scholar, the petitioner has filed this writ petition and points out that he himself has a severe loco motor disability from birth called „arthrogryposis‟, a medical condition which leads to lack of muscles in his arms and legs, which renders him permanently dependent on a wheel chair for basic mobility. The prayer made in this W.P.(C). 9643/2017 reads as under:-
W.Ps.(C)9643/2017 and 5142/2018 Page 2 of 27"(a) Issue a writ, order or direction in the nature of mandamus directing the Respondents 1-4 to take immediate and urgent steps to stay the purchase of 2000 public transport standard floor buses;
(b) Issue a writ, order or direction in the nature of mandamus directing the Respondents No.1-4 to provide the rationale behind the decision to procure non-disabled friendly public transport standard floor buses;
(c) Issue a writ, order or direction in the nature of mandamus directing the Respondents No.1-4 to take immediate and urgent steps to conduct a feasibility study involving representatives from the disabled community for procurement of disabled friendly, accessible low-floor public transport;
(d) Direct the Respondents to mandatorily involve persons with Disability, such as Petitioner in policy decisions, such as purchase of public transport, which affects Persons with Disability, so that their issues are addressed and resolved without undue delay;
(c) To award costs of this Petition to the Petitioner; and/or
(d) To pass any further order(s) which this Hon‟ble Court may deem fit in the facts and circumstances of the case and in the interests of justice."
2. It is the grievance of the petitioner that the act of the respondents in only procuring public transport standard floor buses amounts to mandatorily ignoring the rights of persons with disability and as disabled friendly access to low floor buses is more feasible, the mandamus as prayed for be issued and respondents be restrained from purchasing standard floor buses.
3. Similarly, the same petitioner has filed W.P.(C) No.5142/2018 wherein also similar prayers are made and the prayer made in the said writ W.Ps.(C)9643/2017 and 5142/2018 Page 3 of 27 petition reads as under:-
"(a) Issue a writ, order or direction in the nature of Mandamus, thereby quashing, setting aside and declaring as null and void the RFP Document dated 15.03.2018 issued by the Respondent No.3 for open tender of 1000 Standard Floor Buses.
(b) Direct the Respondents to mandatorily involve Persons with Disability, such as Petitioner in policy decisions, such as purchase of public transport, which affects Persons with Disability, so that their issues are addressed and resolved without undue delay;
(c) To award costs of this Petition to the Petitioner; and/or
(d) To pass any further order(s) which this Hon‟ble Court may deem fit in the facts and circumstances of the case and in the interests of justice."
4. Taking us through the provisions of the Rights of Persons with Disabilities Act, 2016 (hereinafter „the Disability Act, 2016‟) and the rights available to a differently abled person for access to transport and the duty imposed upon the State by virtue of the aforesaid statutory provisions, the prayer made is that the act of the Government in procuring standard floor buses only in comparison to low floor buses is unsustainable.
5. We find from the facts and material available on record that on 1st June, 2018 a detailed interim order was passed by a Bench of this Court restraining the respondents from procuring the standard floor buses. The decision of the Government dated 14th May, 2018 for acquiring about 1000 standard floor buses was stayed and procurement of buses was prohibited by this Court on account of the fact that it violates the statutory mandate contained in the Disability Act, 2016. Challenging this interim order passed W.Ps.(C)9643/2017 and 5142/2018 Page 4 of 27 on 1st June, 2018, the Government of NCT of Delhi filed a Special Leave Petition (Civil) No.19062-19063/2018 before the Hon‟ble Supreme Court and the Supreme Court by an order passed on 2 nd August, 2018 modified the interim order passed by this Court on 1st June, 2018 and permitted procurement of 500 standard floor buses immediately pursuant to the tender issued and requested the parties to approach this Court for a decision with regard to the procurement of the remaining 500 buses. As the order dated 2nd August, 2018 passed by the Hon‟ble Supreme Court is to be considered and referred to for deciding this issue, it is thought appropriate to reproduce herein the entire order passed by the Hon‟ble Supreme Court on 2 nd August, 2018 and the order reads as under:-
"Permission to file the Special Leave petition is granted.
In these special leave petitions, the validity of the order dated 1.6.2018 passed by the High Court of Delhi in Writ Petition (Civil) No. 9643 of 2017 is questioned. It may be recorded at the outset that the writ petition is still pending.
By the aforesaid detailed order, the High Court has restrained the Government of NCT of Delhi as well as Delhi Transport Corporation (DTC) from procuring any standard floor buses.
In the writ petition filed by the petitioner (respondent No. 1 in these special leave petitions), the case set up by the writ petitioners is that the Government of NCT of Delhi as well as DTC is bound to procure only low floor buses which are disabled friendly and, therefore, the tenders floated by the Government of NCT of Delhi as well as DTC for procurement of 1000 standard floor buses each is improper.
The High Court while restraining the DTC and Government of NCT of Delhi has primarily gone by the judgment of this W.Ps.(C)9643/2017 and 5142/2018 Page 5 of 27 Court in Rajive Raturi Vs. Union of India and Others, (2008) 2 SCC 413 and in particular the following direction:-
"(vii) 10% of Government owned public transport carriers are to be made fully accessible by March 2018 34.7. Here again, Section 41 of the Disabilities Act, 2016 provides for comprehensive accessbility in all modes of transport including but not limited to the bus transport.
Therefore, it becomes the duty of the Union, States as well as Union Territories to ensure that all government buses are disabled friendly in accordance with the Harmonised Guidelines. Likewise, the respondents are duty-bound to see that private buses also become disabled friendly. Thus, we direct the Government to lay down the plan giving the dates by which the aforesaid task shall be undertaken, keeping in view the directions which are sought by the petitioner in this behalf and the same shall be filed within three months."
As is clear from the above, insofar as statutory provision is concerned, it makes a provision for 10 per cent of the Government owned public transport carriers to be fully accessible by March, 2018.
This Court on the basis of the aforesaid provision had directed that all modes of transport, including, but not limited to Bus transport should be disabled friendly and, therefore, the Central Government, State Governments as well as Union Territories would ensure that "all government buses are disabled friendly and in accordance with the Harmonised Guidelines".
The High Court has accordingly come to the prima facie conclusion that as all the buses have to be disabled friendly and in accordance with the Harmonised Guidelines, the Government of NCT of Delhi is precluded from buying standard floor buses.
We also note that based on the aforesaid observation, it W.Ps.(C)9643/2017 and 5142/2018 Page 6 of 27 becomes the duty of the Central Government, State Governments and Union Territories to ensure that all government buses should be disabled friendly. The direction which is given is that "the Government to lay down the plan giving the dates by which the aforesaid task shall be undertaken". Therefore, it cannot be read that any procurement hereinafter has to be limited to only low floor buses. On the other hand, the Government was directed to submit a plan in this behalf.
We may also record that pursuant to the aforesaid and other directions issued by this Court in the said judgment, the Central Government as well as many State Governments have submitted their plans and these aspects are being taken care of/monitored by this Court.
No doubt, there is a legitimate expectation that all the buses should be low floor buses and disabled friendly buses. That was the spirit of the directions contained in the aforesaid judgment of this Court. At the same time, the Court has also to keep in mind the practical difficulties that may be faced by the State Governments as well as Central Government in procuring only low floor buses. We are informed that in last few years, tenders were floating for procuring low floor buses, but these could not be fructified.
As far as tender in question floated by the DTC for purchase of 1000 standard floor buses is concerned, we are informed that only one bid was received, and, therefore it is likely to take a decision to scrap the tender. Insofar as tender of Government of NCT of Delhi is concerned, we may also place on record the willingness of the Government of NCT of Delhi to set up hydrolic/mechanical lifts in these buses at its cost. To this effect, an affidavit has been filed.
It is also a matter of record that 66 per cent of the buses in Delhi at present are low floor buses. Further, Mr. Dhruv Mehta, learned senior counsel appearing for the Government of W.Ps.(C)9643/2017 and 5142/2018 Page 7 of 27 NCT of Delhi as well as DTC, states at the Bar that a decision has been taken by the Government of NCT of Delhi to purchase next 500 buses as low floor buses for which they are going to float the tender in the near future.
Keeping in view the aforesaid factors, by way of interim measure, we permit the Government of NCT of Delhi to purchase 500 standard floor buses immediately pursuant to the tender which has already been floated.
We may make it clear that this is only an interim measure to take care of the pressing needs of the commuters in the NCT of Delhi as there is an acute shortage of buses. We also make it clear that the High Court which is seized of the matter may take a final view on the issues raised in the writ petition.
The aforesaid order shall be subject to the final result in the Writ Petition.
It would be open to the parties to raise all the arguments irrespective of the observations of this Court or observations made in the impugned order.
The special leave petitions and the transfer petition are accordingly disposed of."
6. Mr.Jai Dehadri and Mr.Siddharth Arora, the learned counsel appearing for the petitioners and interveners took us in detail through the orders passed, interim in nature, on 1st June, 2018, a detailed order running to more than 74 pages and argued that the Cabinet decision for procuring the standard floor buses is unsustainable as it not only violates the provisions of the Disability Act, 2016 but is also in total disregard to and in violation to the law laid down by the Supreme Court in the case of Rajive Raturi Vs. Union of India & Ors. (2008) 2 SCC 413. The learned counsel invited our W.Ps.(C)9643/2017 and 5142/2018 Page 8 of 27 attention to certain orders passed by this Court also on 26th March, 2007 in W.P.(C)16565/2006, Court on its own motion vs. Union of India in support of their contention. The learned counsel for the petitioners in extensio referred to the judgments of the Supreme Court in the case of Jeeja Ghosh vs. Union of India, (2016) 7 SCC 761 and Rajive Raturi (supra) and tried to argue that in sum and substance the law laid down by the Supreme Court is that all buses to be purchased by the Government should be low floor buses and the act of the Government in purchasing standard floor buses is unsustainable. They also invited our attention to the Automotive Industry Standard Code of Practice for Bus Design and Approval - AIS 052 (hereinafter „AIS 052‟). The findings recorded in the interim order in para- 88 and 89 and tried to argue that the acquisition of buses which do not meet the standard prescribed, namely, law floor buses is unsustainable. The interim order passed by this Court was read in extenso apart from referring to various other judgments and it is the contentions of the petitioners that the State cannot, and are prohibited under law from purchasing standard floor transport vehicles. They also referred to the interim order of the Supreme Court and tried to indicate to us that the action to purchase the standard floor buses is unconstitutional, contrary to the requirement of law, violates the rights available to a differently abled person under Article 14 and 21 of the Constitution and the same is liable to be interfered with.
7. Refuting the aforesaid contentions, the learned counsel appearing for the respondents submitted that the petitioners have misconstrued the entire provisions of law. Their reading of the judgment rendered in the case of Rajive Raturi (supra) is wholly misconceived and unsustainable. The law W.Ps.(C)9643/2017 and 5142/2018 Page 9 of 27 laid down in the case of Rajive Raturi (supra) is not as is canvassed by the petitioners and by taking us through the aforesaid judgment and the statutory requirement as are contemplated under the Disability Act, 2016, the learned counsel for the respondents tried to demonstrate before us that the law only mandates for the present procuring 10% of the buses in Delhi to be of the low floor category and the contention of the petitioner that all the buses have to be low floor buses are unsustainable. They tried to demonstrate by facts and figures available on record that as on date, approximately 69-70% buses plying on the roads of Delhi are low floor buses and the requirement of law as on date laid down by the Supreme Court in the case of Rajive Raturi (supra) is fulfilled, therefore, there is no prohibition in procuring the buses as per the tender. They further argued that the statutory provisions provided under AIS 052 is in accordance with the rule making power available under the Right of Persons with Disabilities Rules, 2017 and the mandate of Section 40, 41 and 46 of the Disability Act, 2016. They further argued that the observations made in para-88 and 89 of the interim order are clearly beyond the prayer made in the writ petition. The interim order declaring the powers of delegated legislation exercised in bringing into force AIS 052 is unsustainable and argued that the contention of the petitioner cannot be accepted.
8. Learned counsel appearing for the petitioner refuted the aforesaid and invited our attention to Harmonized Guidelines and Space Standards for Barrier Free Built Environment for Persons with Disability and Elderly Persons notified by Ministry of Urban Development, Government of India to say that the for passengers and persons with disability who have to move W.Ps.(C)9643/2017 and 5142/2018 Page 10 of 27 around in wheel chair, only low floor buses can be user friendly and the State under law is mandated to procure only such buses and the act of the State Government in trying to procure standard floor buses are unsustainable.
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, W.Ps.(C)9643/2017 and 5142/2018 Page 11 of 27 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-W.Ps.(C)9643/2017 and 5142/2018 Page 12 of 27
(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.
W.Ps.(C)9643/2017 and 5142/2018 Page 13 of 27In 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 12 th April, 2017 was taken note of in tabulated manner and serial No.7 of the aforesaid tabulated chart at page 439 of the judgment which is relevant for the present issue reads as under:-
Sl. Targets set under AIC Petitioner's remarks Action taken No.
7. 10% of Government No standards and Ministry of Road, Transport owned public transport guidelines at present are and Highways has issued carriers are to be made available to make instructions to the States and fully accessible by Government owned Executive Director of March 2018. public transport carriers organisations of State accessible. undertakings to ensure that 10% of Government owned Public Transport is made fully accessible to the PWDs by March 2018.
13. From the aforesaid, it would be clear that the Government agreed to provide 10% of Government owned public transport to be made fully accessible to such persons by March, 2018. It was also indicated on behalf of the petitioner therein that for the present, no standards and guidelines are available to make Government owned public transport carriers accessible and the remark and observations of the Government of India is to the effect W.Ps.(C)9643/2017 and 5142/2018 Page 14 of 27 that all State undertaking have been instructed to ensure 10% Government owned public transport to be made fully accessible to persons with disabilities by March, 2018. All these aspects have been considered by the Hon‟ble Supreme Court and thereafter we find that action taken report was submitted and in the action taken report with regard to serial number 7, the following observations are made in the said judgment at page-454:-
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.
2018. Director of The UoI status report covers only organisations of State buses and not bus depots and bus-
undertakings to stands. (Clause 10.3) ensure 10% of The Harmonised Guidelines Government owned Clause 11.7.1 onwards extensively public transport is deals with public transport. made fully accessible Delhi Government informs that to the PWDs by there are 6350 government buses March 2018. and not 4352 as stated in the status report. Only 3775 are said to be disabled friendly.
The law requires that all public transportation be made disabled friendly and not just government buses. The guidelines cover tramps, taxis, mini buses and three wheelers as well as taxi and autorickshaws stands and car parking.
No mention is made of this in the status report.
Efforts are minimal. All bus stations remain inaccessible and are nightmares for disabled. No accessible toilets provided. No provisions for passengers using wheelchairs and crutches and W.Ps.(C)9643/2017 and 5142/2018 Page 15 of 27 callipers to board buses. No provision of tactile footpaths, kerbside cuts for wheelchair users to enter footpaths, no auditory signals at red light crossings, no engraved zebra crossings and no islands between roads. Pedestrian infrastructure not included as targets in AI campaign. These are covered in the Harmonised Guidelines Section 11 on Transport and Road Planning which covers sidewalks and footpaths, kerb ramps at walkways and pedestrian crossings, road intersections, median refuge/islands, traffic signals, subways and foot over bridges.
There is no reference to these in the status report.
Directions sought:-
(1) For an order directing UoI, States and UTs to:
(a) Ensure that all government buses are disabled friendly in accordance with Clause 11.7.1.2 of the Harmonised Guidelines by December 2017 by induction of new buses and the phasing out of buses that are not disabled friendly.
(b) To ensure that all private buses operating are disabled friendly and that all other buses are not permitted to operate after the deadline of December 2017.
(c) To retrofit all bus stations and bus-stands compliant with Section 10.3 of the Harmonised Guidelines, inter alia, in respect of accessible boarding points, directional signs, toilets, seats, shelter and ramps, etc.
(d) To ensure that all public transportation operating from W.Ps.(C)9643/2017 and 5142/2018 Page 16 of 27 December 2018 is compliant with the Harmonised Guidelines.
14. It was indicated by the Government that the Ministry of Road Transport and Highways has issued instructions and all State undertakings have been directed to ensure 10% Government owned transport vehicles to make fully accessible by March, 2018. The petitioner‟s objection to this as noted in the third column is that the law requires that all public transport be made disabled friendly and not just Government buses. The guidelines cover tramps, taxies, mini buses, three wheelers etc. The objections of the petitioners were noted and finally while issuing the directions in para-34, the following directions have been issued:-
"34. Having regard to the aforesaid position emerging on record, we dispose of these petitions with the following directions:
(i) Making 20-50 important government buildings in 50 cities fully accessible by December 2017 (State Government buildings) 34.1. Since, this deadline is set by AIC itself, this should be met. In any case, as per the provisions of Section 46 of the Disabilities Act, 2016, all government buildings providing any services to the public are to be made fully accessible by June 2019 which has to be adhered to.
(ii) Making 50% of all the government buildings of the national capital and all the State capitals fully accessible by December 2018 34.2. Though the deadline for identifying the buildings was fixed as 28-2-2017, according to status report dated 8-8-2017, only seven States have identified the buildings. Remaining States are directed to identify the buildings by 28-2-2018 and it is made clear that no further time in this behalf shall be granted.
W.Ps.(C)9643/2017 and 5142/2018 Page 17 of 27Insofar as deadline for retrofitting is concerned, the work should be completed by December 2018.
(iii) Completing accessibility audit of 50% of government buildings and making them fully accessible in 10 most important cities/towns of States/UTs not covered in Targets (i) and (ii) by December 2019 34.3. Position regarding this action point is the same as noted in respect of action point 2, namely, only seven States have submitted their list of 10 most important cities/towns and not a single building has been identified so far. The States are, therefore, directed to identify 10 most important cities/towns and complete accessibility audit of 50% of government buildings in these cities/towns by 28-2-2018. Likewise, retrofitting of these be completed by December 2019 as per the revised deadline set out by CCC.
(iv) Central Government buildings 34.4. Having regard to the comments given by the petitioner in its affidavit dated 23-8-2017 on this aspect, time-frame of August 2018 is given for completing this target.
(v) Accessibility in airports. Completing accessibility audit of all the international airports and making them fully accessible by December 2016 34.5. The demand of the petitioner that Civil Aviation Ministry should follow the prescribed template i.e. IIT Roorkee template on the government website appears to be justified which should be implemented as expeditiously as possible. The Union of India should thereafter conduct the accessibility and audit and upload the same on the website by June 2018.
(vi) Accessibility in Railways. Ministry of Railways was required to make all A1, A and B category railway stations fully accessible by July 2016. 50% of all railway stations to made fully accessible by March 2018 34.6. As is clear from the affidavit dated 30-6-2017 filed by the petitioner, as many as 12 directions are sought under this action W.Ps.(C)9643/2017 and 5142/2018 Page 18 of 27 point. Insofar as providing of various facilities in the railway stations are concerned, which are listed by the petitioner, there cannot be any dispute that the Indian Railways is statutorily obligated to make those provisions. The petitioner has, however, sought time-bound directions for providing such facilities. Wherever the provisions of the Disabilities Act, 2016 prescribe the deadlines, the respondent is to provide those facilities within those time framework. Insofar as other facilities are concerned, in respect of which the petitioner wants those facilities by specified period, we are not fixing such a period. Instead, we direct that the appropriate/competent authority in the Railways shall make an assessment in this behalf so as to ascertain as to by what date(s) these facilities will be provided. Such a study can be undertaken and exercise be completed within a period of three months and report in that behalf shall be filed in the Court, chalking out the progressive plan.
(vii) 10% of Government owned public transport carriers are to be made fully accessible by March 2018 34.7. Here again, Section 41 of the Disabilities Act, 2016 provides for comprehensive accessibility in all modes of transport including but not limited to the bus transport. Therefore, it becomes the duty of the Union, States as well as Union Territories to ensure that all government buses are disabled friendly in accordance with the Harmonised Guidelines. Likewise, the respondents are duty-bound to see that private buses also become disabled friendly. Thus, we direct the Government to lay down the plan giving the dates by which the aforesaid task shall be undertaken, keeping in view the directions which are sought by the petitioner in this behalf and the same shall be filed within three months.
(viii) Comprehensive revision of target deadliness under accessibility of knowledge and ICT Ecosystem. At least 50% of Central and State Government websites are to meet accessibility standards by March 2017. At least 50% of the public documents are to meet accessibility standards by March 2018 W.Ps.(C)9643/2017 and 5142/2018 Page 19 of 27 34.8. On this action point, the petitioner has sought five directions. Again, there cannot be any dispute that such provisions have to be made as the Disabilities Act, 2016 itself mandates that. The only question is about the time schedule. On certain aspects, AIC had itself mentioned the target date. In any case, let there be a study undertaken in this behalf as well by the Union of India and report be filed within three months stating as to by what date(s) compliance shall be made.
(ix) Bureau of Indian Standards to embed disability aspect in all relevant parts of revised National Building Code 34.9. It is expected that the respondents would regularly update the Harmonised Guidelines keeping in view the provisions of the Disabilities Act, 2016 and technological advancement vis-à- vis the needs of persons with disabilities.
(x) The target of training additional 200 sign language interpreters by March 2018 34.10. Needful be done in this behalf as well within reasonable time and the Government is directed to file an affidavit within three months stating the time period within which the same can be accomplished.
(xi) Advisory Boards 34.11. As per the provisions of Sections 60 and 66 of the Disabilities Act, 2016, all States and Union Territories are required to constitute the Central and State Advisory Boards. In order to effectively implement the provisions of the said Act, it becomes the duty of the States and Union Territories to constitute such Advisory Boards. Therefore, we direct these Advisory Boards to be constituted by all States and Union Territories within a period of three months from today."
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.
W.Ps.(C)9643/2017 and 5142/2018 Page 20 of 2716. 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 W.Ps.(C)9643/2017 and 5142/2018 Page 21 of 27 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 W.Ps.(C)9643/2017 and 5142/2018 Page 22 of 27 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 1 st 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 W.Ps.(C)9643/2017 and 5142/2018 Page 23 of 27 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 W.Ps.(C)9643/2017 and 5142/2018 Page 24 of 27 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 W.Ps.(C)9643/2017 and 5142/2018 Page 25 of 27 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 W.Ps.(C)9643/2017 and 5142/2018 Page 26 of 27 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 OCTOBER 22, 2018 'anb' W.Ps.(C)9643/2017 and 5142/2018 Page 27 of 27