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2015 DIGILAW 1973 (MAD)

Alagarsamy v. State of Tamil Nadu

2015-04-22

G.CHOCKALINGAM, S.MANIKUMAR

body2015
Judgment :- S. Manikumar, J. 1. An Auto rickshaw driver, plying the said vehicle, in Madurai District, for more than 10 years, has sought for a Writ of Mandamus, directing the respondents, to constitute special teams, comprising of officials from the Revenue Department, Transport Department and Police Department, for the effective implementation of G.O.No.772, Home (Transport-III) Department, dated 16.10.2014, issued by the 2nd respondent Government, and the consequential order, issued by the District Collector cum Regional Transport Authority, Madurai District, 4th respondent herein, in Se.Mu.Aa.No.63577/E2/2014, dated 16.10.2014, relating to monitoring the functioning of meters, collection of excess auto fare from the passengers, more than revised auto fare fixed by the respondents, 2 and 4, and carrying number of passengers, not exceeding three persons, at a time, in all the auto rickshaws, including the autos, with different brand names, Viz., Ape, Ape City, Mahindra Alpa, Bajaj Altima and other auto rickshaws vehicles, being operated in Madurai District, within a time frame, to be fixed by this Court. 2. In the supporting affidavit, the petitioner has contended that the Government, have issued G.O.Ms.No.48, fixing the auto rickshaw fares. Thereafter, representations were made, to revise the auto rickshaw fares, in the State of Tamil Nadu. Government have issued G.O.No.772, Home (Transport-III) Department, dated 16.10.2014, revising the auto fare. In tune with the abovesaid Government Order, the District Collector cum Regional Transport Authority, Madurai District, 4th respondent, has issued an order, in Se.Mu.Aa.No.63577/E2/2014, dated 16.10.2014, fixing the minimum auto rickshaw fare, at Rs.25/-, upto 1.8 kilometers, and Rs.12/-, for each subsequent kilometers. In the abovesaid proceedings, waiting charge for every five minutes was fixed at Rs.3.50/- and additional 50% fare than day fare, was fixed as night fare (from 11 PM to 5 AM). The authority has also stated that fares, so fixed, would come into effect from 16.10.2014. 3. It is the grievance of the petitioner that when auto rickshaws with different brand names, namely, Ape, Ape City, Mahindra Alpa, Bajaj Altima, are permitted, to carry only three passengers, they are being used, as share autos, carrying more than 10 passengers, at a time and on account of the same, several accidents are reported every day, and valuable life of the general public, is also affected. 4. 4. It is the further grievance of the petitioner that G.O.No.772, Home (Transport-III) Department, dated 16.10.2014, issued by the 2nd respondent Government and the consequential order issued by the District Collector cum Regional Transport Authority, Madurai District, 4th respondent, in Se.Mu.Aa.No.63577/E2/2014, dated 16.10.2014, have not been implemented, in letter and spirit, in so far as the abovesaid vehicles, are concerned. 5. It is the further contention of the petitioner that though several representations have been made, by the Auto Rickshaw Trade Unions, to the District Collector cum Regional Transport Authority, Madurai District, to take action against the owners and drivers of the auto rickshaws, with different brand names, Viz., Ape, Ape City, Mahindra Alpa, Bajaj Altima, carrying more than three passengers at a time, no action has been taken. Representation dated 02.02.2015 has been made in person. Representation dated 09.02.2015 of the District Co-ordinator of Satta Panchayat Iyakkam and the further representation dated 14.03.2015, requesting the authorities, to constitute special teams, comprising of officials from the Revenue Department, Transport Department and Police Department, for the effective implementation of G.O.No.772, Home (Transport-III) Department, dated 16.10.2014, issued by the Government and the consequential order, issued by the District Collector cum Regional Transport Authority, Madurai District, 4th respondent in Se.Mu.Aa.No.63577/E2/2014, dated 16.10.2014, remain unanswered and hence, present writ petition, for the relief stated supra. 6. When the matter came up on 25.03.2015, Mr.M.Alagadevan, learned Special Government Pleader, was directed to take notice, for all the respondents and get instructions. 7. On the basis of the counter affidavit filed by the District Collector cum Regional Transport Authority, Madurai District, 4th respondent herein, Mr.M.Alagadevan, learned Special Government Pleader submitted that auto rickshaw fare, fixed by the Government, in G.O.No.772, Home (Transport-III) Department, dated 16.10.2014, and the consequential order issued by the District Collector cum Regional Transport Authority, Madurai District, is being uniformly applied, and in respect of all the auto rickshaws in Madurai District, permitted to carry, three passengers, and there is no discrimination, on the basis of the manufacturer of the vehicle. 8. 8. Inviting the attention of this Court, to the Tabular Columns mentioned in the counter affidavit, filed by the District Collector cum Regional Transport Authority, Madurai District, Mr.M.Alagadevan, learned Special Government Pleader, submitted that action has been taken against the violators, carrying more passengers, than the permitted, demanding excess fare, autos operated without meters, and other cases, have been registered, against the perpetrators of law, or those who have contravened the orders, issued by the Government, from time to time. According to the learned Special Government Pleader, so far, between December 2014 and March 2015, a sum of Rs.27.24,550/- has been collected towards fine, by the traffic police. 9. The learned Special Government Pleader, has further submitted that in respect of share autos, permit has been given to carry five passengers. He further added that the petitioner cannot seek for further revision of any fare, in view of the recent G.O.No.772, Home (Transport-III) Department, dated 16.10.2014. According to the learned Special Government Pleader, petitioner, a driver of the auto rickshaw, permitted to carry three passengers, has no right to claim application of G.O.No.772, Home (Transport-III) Department, dated 16.10.2014, to share autos, for which, permit has been granted, to carry five passengers. 10. He further submitted that even before receipt of the petitioner's representation, authorities have taken effective steps, for implementation of the Government Order. In so far as recalibration of electronic meters, is concerned, the Government, in G.O.No.772, Home (Transport-III) Department, dated 16.10.2014, has granted 45 days grace time. For the abovesaid reasons, he prayed for dismissal of the writ petition. 11. Mr.Kalyanasundaram, Regional Transport Authority, Madurai District, is present in the Court. Apart from the submissions made by the learned Special Government Pleader, the Regional Transport Authority, Madurai, submitted that in so far as five seater auto rickshaw, is concerned, Government have issued G.O.Ms.No.1493, Home (Transport-VI) Department, dated 30.10.1998, permitting Vikram three wheelers, five seater auto rickshaws. as public service vehicles (Motor Cabs) in Tamil Nadu. 12. He further submitted that subsequently, orders were issued in G.O.Ms.No.277, Home (Transport-VI) Department, dated 22.03.2001 and the Special Commissioner and Transport Commissioner, Chennai, has also issued a letter in R.No.99243/G3/99, dated 18.05.2001, to all the Regional Transport Officers in Tamil Nadu, fixing radius of operation and the rate of fare to be collected, by such three wheelers, five seater auto rickshaws. He also added that the said share autos, carrying five persons, have been permitted to collect Rs.1, per person/per kilometer, as per the Government Order. 13. He further submitted that out of 50 three wheeler share autos, were permitted to be operated in Madurai District, as on today, only, 10 three wheeler share autos are plying. Submission is placed on record. Heard the learned counsel for the parties and perused the materials available on record. 14. G.O.No.772, Home (Transport-III) Department, dated 16.10.2014 is extracted hereunder:- HOME DEPARTMENT ENHANCEMENMT OF RATES OF FARE FOR CONTRACT CARRIAGE AUTO RICKSHAWS PLYING IN COIMBATORE AS WELL AS OTHER DISTRICTS OF TAMIL NADU UNDER MOTOR VEHICLES ACT. [G.O.Ms.No.772, Home (Transport-III), 16th October 2014] No.II(2)/HO/607(B)/2014 In exercise of the powers conferred by clause (i) of sub-section (1) of Section 67 of the Motor Vehicles Act, 1988 (Central Act 59 of 1988) the Governor of Tamil Nadu hereby directs the Regional Transport Authorities of Tamil Nadu to revise the rates of fare for contract carriage auto rickshaws plying within their respective Districts as specified below:- (i) Minimum charge for first 1.8 kilometers : Rupees twenty five only. (ii) For each additional Kilometer : Rupees twelve only. (iii) Detention charges : Rupees three and fifty paise only for every five minutes. (iv) Night service charges(between 11.00 p.m and 5.00 a.m) : In addition to the total fare calculated at the above rate, an additional charge of fifty percent of the total fare. APURVA VARMA Principal Secretary to Government 15. Consequently, the District Collector cum Regional Transport Authority, Madurai District, has issued proceedings in Se.Mu.Aa.No.63577/E2/2014, dated 16.10.2014, fixing the same rate and communicated the orders of the Government, to the Commissioner of Police, Madurai City, Superintendent of Police (Madurai Rural), Joint Commissioner of Transport Department, Madurai, Regional Transport Officers (Madurai City), Consumer Organisations, Madurai. The District Collector cum Regional Transport Authority, Madurai District, has also made print and visual communications, through newspapers and televisions. 16. The District Collector cum Regional Transport Authority, Madurai District, has also granted 45 days time, to the auto owners, for recalibration of electronic meters. In addition to the above, he has also directed that details of the auto fares, should be pasted or written in every auto rickshaw. 16. The District Collector cum Regional Transport Authority, Madurai District, has also granted 45 days time, to the auto owners, for recalibration of electronic meters. In addition to the above, he has also directed that details of the auto fares, should be pasted or written in every auto rickshaw. Copy of permit issued by the Regional Transport Authority, Madurai City, produced before this Court, in respect of the permit holder, shows that the seating capacity of the three wheeler auto rickshaw, is four in all, including the driver. It is the submission of the learned Special Government Pleader that all the three wheeler auto rickshaws with different manufactures, with different names, Viz., Ape, Ape City, Mahindra Alpa, Bajaj Altima, are permitted to carry only, three passengers. 17. Perusal of the permit shows that three wheeler auto rickshaw permit holders plying on the road, with abovesaid names are permitted to operate the vehicle, within the radius of 30 kilometers from the centre point of the town or place of residence of the permit holder, upto the distance of town buses plying or upto the district border, whichever is less. It is also made clear that the permit, does not enable the holder, to use the vehicle herein, described as stage carriage or goods carriage. 18. Though the Regional Transport Authority, present before the Court, has submitted that all the abovesaid vehicles, have been permitted to carry only three passengers, it is the grievance of the petitioner that taking advantage of the size of the vehicle (length and breadth), fixtures are put up, by the auto drivers or the auto owners, as the case may be, and thus by carrying more than three passengers, permitted by the Regional Transport Authority, Madurai District, such vehicles are being used, as share auto rickshaws and that despite continuous representations, no action has been taken. Possibility of the vehicles with bigger size, being used to carry passengers, more than three, cannot be completely, ruled out, as some of the photographs produced before this Court, indicate temporary fixture in a auto, but as per the counter affidavit filed by the District Collector cum Regional Transport Authority, Madurai District, the details relating to number of cases booked, fine amount collected by the Traffic Department and number of cases checked by the Transport Department, make it clear that wherever auto rickshaws are operated, (i)without meters; (ii)though the meters were fitted, but not operated and (iii)overloading cases, compounding fee, has been collected by the Transport Authority. Likewise, the traffic police has also taken action against several auto drivers, for, (i) demanding excess fare; (ii)autos without meters; (iii)autos carrying excess passenger and (iv)other cases, and collected fine amount of Rs.27,24,550/-. Thus, both the Transport Department and the Traffic Police, have taken action against perpetrators of law, or those who have contravened, the Government Order in G.O.No.772, Home (Transport-III) Department, dated 16.10.2014, issued by the 2nd respondent Government and the consequential order issued by the District Collector cum District Transport Authority, Madurai District, 4th respondent in Se.Mu.Aa.No.63577/E2/2014, dated 16.10.2014. The details of action taken by the Transport Department and the Traffic Police are extracted from the counter affidavit. AUTO RICKSHAW CHECKING PARTICULARS BY the TRANSPORT AUTHORITY Sl. No. Name of Irregularities No. of Check Report Compoundry Fees Remarks 1 Plied without fare meter 122 3,05,000 For the 3 items of irregularise mentioned here 290 auto rickshaws are detained. From 3 rd week of February onwards 113 permit has been suspended. If the permit is already suspended for 2 times then that the permit will be cancelled in the 3 rd time instead of suspension 2 Fare meter fitted. But not operated. 297 4,92,200 3 Over load by persons 93 56700 Total 512 8,53,900 Likewise the Traffic Police have taken the following actions. Year/Month Auto Demanding Excess fare Auto without meter Auto carrying excess passenger Auto other cases Auto total cases Fine collected (in Rs) 2014/December 5 655 1091 3451 5202 7,05,300 2015/January 432 655 1949 3065 6101 6,29,800 2015/February 347 242 806 2937 4332 7,17,950 2015/March 376 161 615 2845 3997 6,71,500 Total 1160 1713 4461 12298 19632 27,24,550 19. Year/Month Auto Demanding Excess fare Auto without meter Auto carrying excess passenger Auto other cases Auto total cases Fine collected (in Rs) 2014/December 5 655 1091 3451 5202 7,05,300 2015/January 432 655 1949 3065 6101 6,29,800 2015/February 347 242 806 2937 4332 7,17,950 2015/March 376 161 615 2845 3997 6,71,500 Total 1160 1713 4461 12298 19632 27,24,550 19. In addition to the above, the District Collector, Madurai District, has also stated that (i) for plying the vehicle without fare meters; (ii) fare meters fitted, but not operated and (iii) for overloading, from the third week of February onwards, 113 permits have been suspended. 20. Thus, from the details extracted supra, it is evident that the District Collector cum Regional Transport Authority, Madurai District, 4th respondent, has taken action, against the violators and thus, taken steps to implement G.O.No.772, Home (Transport-III) Department, dated 16.10.2014. 21. Compounding fee and fine amount put together works out to Rs.35,78,450/-. About 19,632 cases have been registered within a span of four months between December 2014 to March 2015, under various heads. 22. Contention of the petitioner that respondents 4 and 5 have not taken any action, for effective implementation of G.O.No.772, Home (Transport-III) Department, dated 16.10.2014, cannot be accepted. Having regard to the averments, made in the counter affidavit, with specific details, the request of the petitioner, for issuance of a Mandamus, directing the respondents, to constitute special teams comprising of the officials from the Revenue, Transport and Police Departments, for effective implementation of G.O.No.772, Home (Transport-III) Department, dated 16.10.2014, as stated supra, cannot be granted. 23. In so far as the three wheeler five auto rickshaws vehicles, this Court deems it fit, to extract G.O.Ms.No.1493, Home (Transport-VI) Department, dated 30.10.1998, G.O.Ms.No.277, Home (Transport-VI) Department, dated 22.03.2001, and the consequential order issued by the Special Commissioner and Transport Commissioner, Chennai, in R.No.99243/G3/99, dated 18.05.2001, to all the Regional Transport Officers in Tamil Nadu. GOVERNMENT OF TAMIL NADU ABSTRACT Motor Vehicles – Scooters India Limited – Vikram 3 Wheeler 5 Seater Diesel Vehicle – Permission to run as Autorickshaws in Tamilnadu – Rates of fare fixed – Notified. ----------------------------------------------------------------------------- HOME (Transport-VI) DEPARTMENT G.O.Ms.No.1493 Dated : 30.10.1998 Read : ORDER In the G.O. First read above, the Government have permitted to register Vikram 3 Wheelers 5 Seater Autorickshaws as a public service vehicls (Motor Cabs) in Tamilnadu. ----------------------------------------------------------------------------- HOME (Transport-VI) DEPARTMENT G.O.Ms.No.1493 Dated : 30.10.1998 Read : ORDER In the G.O. First read above, the Government have permitted to register Vikram 3 Wheelers 5 Seater Autorickshaws as a public service vehicls (Motor Cabs) in Tamilnadu. In this G.O. Third read above, the Government have granted permission for running 100 Vikram 3 wheeler 5 seater diesel vehicles as autorickshaws in the city of Chennai on experimental basis. 2. After careful consideration regarding the fare to be collected from the public for travelling in these vehicles, the Government have decided to fix the fare at Rs.1/- per head per kilo meter (No meter need of fixed). Accordingly, they direct that the fare for vikram 3 Wheeler 5 seater diesel vehicles be fixed at Rs.1/- per head per kilo meter. 3. The following Notification will be published in the Tamilnadu Government Gazette:- NOTIFICATION In exercise of the powers conferred by sub-section (1) of section 67 of the Motor Vehicles Act, 1988 (Central Act 59 of 1988), the Governor of Tamilnadu hereby directs that the fare for the three wheeler and five seater contract, Carriage, be fixed at Rs.1/- (Rupee one only) per kilo meter. R.POONLINGAM SECRETARY TO GOVERNMENT ---------------------------------------------------------------------------- GOVERNMENT OF TAMILNADU ABSTRACT Motor Vehicles – Auto rickshaws – 3 wheeler with 5 seater vehicles – Issue or Autorickshaw permits to run in the districts and Chennai city – orders – Issued. ----------------------------------------------------------------------------- HOME (Transport-VI) DEPARTMENT G.O.Ms.No.277 Dated : 22.3.2001 1. G.O.Ms.No.1492 Home dated 30.10.98. 2. G.O.Ms.No.1493, Home dated 30.10.98. 3. From the Transport Commissioner, Chennai, Letter No.H3/99743/2000, dated 14.10.2000. ***** ORDER In the G.O first read above, the Government permitted the plying of 100 five seater autos (Vikram) in Chennai City manufactured by Scooters India Limited, a Government of India Enterprise. The transport Commissioner, Chennai, in his letter thrid read above has recommended that 50 more permits for 5 seater autos may be given to each Regional Transport Office, in Chennai and 50 each for district head quarters considering the public need. The Commissioner of Police has also agreed to the proposal of the Transport Commissioner. 2. The Government have examined the proposal of Transport Commissioner. They consider that as far as Chennai city is concerned, it would be sufficient if another 100 five seater Autos are permitted instead of permitting 50 additional Autos for each Regional Transport Office in Chennai City. The Commissioner of Police has also agreed to the proposal of the Transport Commissioner. 2. The Government have examined the proposal of Transport Commissioner. They consider that as far as Chennai city is concerned, it would be sufficient if another 100 five seater Autos are permitted instead of permitting 50 additional Autos for each Regional Transport Office in Chennai City. However, in respect of district head quarters, 50 five seater Autos can be permitted as recommended by Transport Commissioner. Accordingly, the Government decided that 100 additional auto permits for 5 seater autos in Chennai city and 50 each for other Regional Transport Officers in district head quarters be allowed. The Transport Commissioner is requested to take suitable action accordingly. (BY ORDER OF THE GOVERNOR) SANTHA SHEELA NAIR SECRETARY OF GOVERNMENT -------------------------------------------------------------------------- Letter.R.No.99243/G3/99, Dated 18.5.2001 Sir, Sub: Motor Vehicles – Auto rickshaw-3 Wheeler five seater Vehicles – Issue of Auto Rickshaw permits to run in the districts and Chennai City – Orders issued – certain clarification requested – regarding. Ref:1.G.O.Ms.No.277, 278 Home (Tr.II) Dept. dated 22.3.2001 and 1492, 1493 dated 30.10.98 in this office letter of even No.dated 11.4.2001. 2. Letter No.30807/B2/2001 dated 9.4.2001 from the RTO, Coimbatore (North) 3. Letter No.9237/A2/2001 dated 2.4.2001 from the RTO, Kanchipuram. 4. Letter No.30166/2001 dated 20.4.2001 from the RTO, Erode. 5. Letter dated 30.4.2001 from Tvl. Bajaj Tempo Ltd., warren Road, Chennai-4. 6. Letter dated 29.3.2001 from Scooters India Ltd., 9, Dr.Lakshmanaswamy salai, K.K.Nagar West, Chennai-78. ****** I invite your personal attention to the Government orders communicated in this office letter first cited and request you to adhere to the instructions of Government orders and also to the following conditions while granting the permits for 5 seater Auto Rickshaws. 1. The above permits shall be issued to the persons who are in Chennai City and District Head quarters (subject to the ceiling prescribed in G.O.277 & 278 dt:22.3.2001) 2. The inner height of the vehicle shall not be less than 1219 mm. 3. All the seats shall face forward and the distance between 2 seats (Back to Back) shall not be less than 860 mm. 4. The vehicle shall be provided with head of roofing. 5. The vehicles may be permitted to ply within a radius of 30 KM from the place where the vehicle is normally kept for use (as specified by the applicant in the application). 6. 4. The vehicle shall be provided with head of roofing. 5. The vehicles may be permitted to ply within a radius of 30 KM from the place where the vehicle is normally kept for use (as specified by the applicant in the application). 6. Fare shall be collected at the rate of Rs.1 per K.M as ordered in G.O.Ms.No.1493 dated 30.10.98. 7. Tax shall be collected at the rate prescribed in schedule 1 SLNo.5A (b) (ii) of Tamilnadu Motor Vehicles Taxation Act 1974 i.e at the rate of Rs.700/- per annum and Rs.3500/- for five years. The Regional Transport Officers are requested to send acknowledgements to the respective Zonal Officers and the Zonal Officers may send their acknowledgements to this office. Sd/- M.P.PRANESh Special Commissioner and Transport Commissioner 24. When three wheeler five seater auto rickshaws, have been permitted to carry five passengers, as per the Government Order, they have to collect fare of Rs.1/- per person/per kilometer, no meter need be fixed. Such three wheeler five seater auto rickshaws, are called as, share autos, and they are permitted to ply within 30 kilometers radius, from its parking place. They can carry six persons in all, including the driver, at Rs.1 per person, per kilometer. 25. In view of the above discussion, we issue the following directions:- (i).G.O.No.772, Home (Transport-III) Department, dated 16.10.2014, issued in respect of three wheeler auto rickshaws, permitted to carry three passengers alone, cannot be made applicable to three wheeler five seater auto rickshaws, since both are different categories. (ii).In respect of three wheeler auto rickshaws, with the brand names, Viz., Ape, Ape City, Mahindra Alpa, Bajaj Altima, by same or different manufacturers, though permitted to carry, only four persons in all, including driver (3+1), should not be permitted to carry more than the permitted passengers. (iii).Three wheeler auto rickshaws should not be permitted to have any additional fixtures, making it convenient, to carry more passengers, than permitted. The additional fixtures made, if any, should be directed to be removed. (iv).The District Collector cum Regional Transport Authority, Madurai District, 4th respondent, and the Commissioners of Police, Madurai City and Madurai Rural, are directed to issue suitable instructions, to intensify action, by the respective departments, to avoid any complaints from the public. (v).Wherever recalibration of electronic meters is not done within the time, suitable action should be taken. (iv).The District Collector cum Regional Transport Authority, Madurai District, 4th respondent, and the Commissioners of Police, Madurai City and Madurai Rural, are directed to issue suitable instructions, to intensify action, by the respective departments, to avoid any complaints from the public. (v).Wherever recalibration of electronic meters is not done within the time, suitable action should be taken. (vi)Wherever, it is found that compounding fee and payment of fine, is made for violation of permit conditions, then, as per Section 86 of the Motor Vehicles Act, the District Collector cum District Transport Authority, Madurai District, 4th respondent, is directed to issue instructions to all the Transport Authorities, to take action, in those cases, for suspension or cancellation of permit, as the case may be, subject of course to the instructions already issued. (vii).The District Collector cum District Transport Authority, Madurai District, 4th respondent, and the Commissioners of Police, Madurai City and Rural, are directed to issue suitable instructions, to the Regional Transport Officers, Madurai City, and the Police, to take appropriate action against share autos, if they carry more than five persons. (viii) Temporary or permanent fixtures in the five seater share autos should not be allowed. (ix) The District Collector cum Regional Transport Authority, Madurai District, 4th respondent, is directed to ensure submission of periodical reports, once in a month, to him, by the Regional Transport Officers in Madurai City. (x) The Commissioners of Police, Madurai City and Rural, are also directed to ensure, submission of periodical reports, by the respective jurisdictional Officers. 26. Though the relief sought for by the petitioner, is declined, for effective enforcement of the provisions of the Motor Vehicles Act, 1988, and G.O.No.772, Home (Transport-III) Department, dated 16.10.2014 issued by the 2nd respondent, Government and the consequential order issued by the District Collector cum District Transport Authority, Madurai District, 4th respondent in Se.Mu.Aa.No.63577/E2/2014, dated 16.10.2014, the above directions are issued. 27. The writ petition is accordingly disposed of. No costs.