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2016 DIGILAW 1692 (GUJ)

Biju Achuthan Nair v. State of Gujarat

2016-08-09

R.SUBHASH REDDY, V.M.PANCHOLI

body2016
JUDGMENT : R. Subhash Reddy, J. 1. By way of the present Public Interest Litigation, the petitioner, who is a practicing advocate has sought the following reliefs: "12(i) Issue a writ of mandamus or any other appropriate writ, order or direction declaring that carrying of school children who are going to school from homes and back to homes in auto rickshaws, beyond the permitted loading capacity of the said vehicles and violating the provisions of Gujarat Motor Vehicle Rules, 1988, is unlawful and violative of the fundamental rights of the children, guaranteed under the Constitution of India. (ii) Issue a writ of mandamus or any other appropriate writ, order or direction declaring that the inaction of respondents in taking necessary measures and steps to immediately stop the reckless practice being adopted by the operators of auto rickshaws carrying children who are going to school from homes and back to homes, loading beyond the permitted loading capacity of the said vehicles and violating the provisions of Gujarat Motor Vehicle Rules, 1988 is unlawful and violative of the fundamental rights of the children guaranteed under the Constitution of India. (iii) Issue a writ of mandamus or any other appropriate writ, order or direction to the respondents to make immediate measures to ensure that no where in the State of Gujarat, children who are going to school from homes and back to homes, are allowed to be carried in auto rickshaws overloaded beyond the permitted loading capacity and violating the provisions of Gujarat Motor Vehicle Rules, 1988. (iv) Direct respondents to lay down necessary guidelines and additional rules, over and above the existing provisions in Gujarat Motor Vehicle Rules, 1988, which are not adequate to safeguard the life of school going children in auto rickshaws, if necessary, after appointing a committee of experts. (v) During pendency and final disposal of the present petition this Honourable Court may be pleased to direct respondents to ensure that no where in Gujarat State, children who are going to school from homes and back to homes are allowed to be carried in auto rickshaws overloaded beyond the permitted loading capacity of the carrying vehicles and violating the provisions of Gujarat Motor Vehicle Rules 1988." 2. In this petition, mainly it is the allegation of the petitioner that autorickshaws carrying school children are regularly being plied in a highly irresponsible and in life-threatening manner. In this petition, mainly it is the allegation of the petitioner that autorickshaws carrying school children are regularly being plied in a highly irresponsible and in life-threatening manner. It is alleged that the school children are dumped and overloaded beyond the permitted capacity without any restriction. It is alleged that though it is the responsibility of the Government to take remedial measures, no action is taken by the Government. As such in the interest of school going children this petition is filed. 3. It is the case of the petitioner that Commission for Protection of Child Rights Act, 2005 came to be enacted by the Parliament. Section 2(b) of the said Act provides that child rights' includes the children's rights adopted in the United Nations Convention on the rights of the child, on 20.11.1989, as ratified by Government of India on 11.12.1992. It is stated that the Government has responsibility to take all available measures to make sure that children's rights are respected and fulfilled. Children have right to be protected from being hurt and mistreated physically or mentally. It is the case of the petitioner that it is imperative duty of the State to ensure that in its pursuit of education by going to school, a child must be safe. Journey to the school should not be an adventure with life. The petitioner noticed that the autorickshaws carrying children to school are regularly being plied in a highly irresponsible and life threatening manner. In all major cities of Gujarat, autorickshaws which carry school children, the children are dumped and overloaded beyond the permitted capacity without any restriction. Normally, an autorickshaw has seating capacity of 3+1, whereas school autorickshaws carry 12 to 16 kids. 4. By order dated 11.01.2016, this Court granted liberty to join Secretary, Road and Transport Department, Secretary, Home Department of the State of Gujarat, and the Commissioner for Protection of Child Right, constituted under the Commission for Protection of Child Rights Act, 2005, as party respondents. By the said order, the original respondents and the newly joined respondents were directed to report to this Court about remedial measures they propose to take to ensure that children are carried to school by autorickshaws or vans in safe condition. Further, when the matter was called out on 28.01.2016, it was represented by the learned Government Pleader that all the three departments, viz. Further, when the matter was called out on 28.01.2016, it was represented by the learned Government Pleader that all the three departments, viz. Transport Department, Home Department and Education Department were meeting and effective mechanism is being worked out and the matter was adjourned. Subsequently, in the Affidavit in Reply filed on behalf of the respondents they have stated that there is also a policy dated 03.03.2006 of the Government of Gujarat regarding determination of policy, conditions for school children in three-wheeler passenger auto rickshaws and seating capacity. Pursuant to the directions issued by this Court a report prepared by the Home, Transport & Education Department is also placed on record. 5. We have heard the learned counsel for the petitioner, who appeared as party-in-person, the learned Government Pleader and also the learned counsel appearing for the impleaded respondents, viz. Amdavad School Worthy Association (All Vehicle) and Autorickshaw Drivers Cooperative Society Limited. 6. The Party-in-Person mainly contended that normally, seating capacity of autorickshaw is 3+1 (driver). However, autorickshaws with capacity of four persons are carrying more than 15 children. It is submitted that Motor Vehicles Act, 1988 does not contain any special provision for the vehicle carrying school children; except few provisions, there are no specific provisions in the said Act for ensuring safety of the children. The petitioner referred to Rule 119 of the Gujarat Motor Vehicle Rules, 1988, and thereafter submitted that most of the safeguards provided in the Rules are not followed. He, therefore, submitted that in the interest of innocent children it is highly necessary that the State machinery should ensure strict enforcement of the relevant provisions of the Gujarat Motor Vehicle Rules, 1988, and if necessary the State shall also lay down comprehensive rules/guidelines over and above the relevant provisions of the aforesaid rules, which are inadequate to take care of the interest of school going kids. At this stage, he further urges that the Division Bench of this Court in order dated 24.04.2006 passed in Special Civil Application No. 13308 of 2004 has given certain directions and the same are required to be followed by the respondent authorities. He, therefore, submitted that necessary directions be issued to the respondent authorities. 7. On the other hand the learned Government Pleader, Ms. He, therefore, submitted that necessary directions be issued to the respondent authorities. 7. On the other hand the learned Government Pleader, Ms. Manisha Shah appearing for the respondent authorities referred to Rule 126 of the Motor Vehicle Rules, under which prototype of every motor vehicle is required to be tested by the agencies specified by the Central Government for granting certificate by the agency as to the compliance of the provisions of the Act and Rules. The said certificate issued by the agency contains specific column indicating the seating capacity of the vehicle/autorickshaw. The seating capacity may vary from 3 to 6 (including driver). Commissioner of Transport, by Circular dated 03.03.2006, came out with a policy pertaining to autorickshaws carrying school children. The said Circular is clear that considering the safety of children, it restricts number of children below the age of 12 years to double the seating capacity as mentioned in the Type Approval Certificate. After directions issued by Division Bench of this Court in order dated 24.04.2006 in Special Civil Application No. 13308 of 2004, Commissioner of Transport came out with Circular dated 20.06.2006 pertaining to autorickshaws and Maruti vans carrying children to school. It was also decided that permit is to be given to the vehicles wherein maximum number of children below the age of 12 years permitted to travel in autorickshaws and Maruti vans, should not exceed double of seating capacity. 8. The learned Government Pleader thereafter submitted that after order dated 28.01.2016 passed by this Court, a meeting was convened by the officers of three Departments, on 30.01.2016. Senior officers from Home Department, Under Secretary of Education Department as well as officers from the Commissioner of Transport had joined the meeting in the Office of the learned Government Pleader and at the end of the meeting, suggestions from all concerned were recorded for implementation of the Circulars. Certain suggestions were also made with a view to see that circulars are effectively implemented. The learned Government Pleader referred to the said suggestions which are produced with further Affidavit in Reply field on behalf of respondent No. 2. 9. After the said meeting, suggestions for proper implementation of the Circular of the Government were forwarded to all the Regional Transport Offices, Education Department as well as all private and public schools. Thereafter, a meeting was held between Vardhi Association and Ahmedabad Police. 9. After the said meeting, suggestions for proper implementation of the Circular of the Government were forwarded to all the Regional Transport Offices, Education Department as well as all private and public schools. Thereafter, a meeting was held between Vardhi Association and Ahmedabad Police. The Home Department carried out a special drive in the interregnum period. It is further pointed out that wide publicity was given by the authorities to sensitize the issue and create awareness through newspapers and therefore, an advertisement was issued on 02.02.2016 in five newspapers. 10. The learned Government Pleader thereafter, referred to report of the joint action taken by three Departments in pursuance of the directions given by this Court. The said report is produced at page 249 of the compilation. 11. It is further submitted by the learned Government Pleader that the Police Department has conducted continuous checking drive in February and March 2016 and also conducted awareness campaign with parents as well as the school authorities, autorickshaws owners/drivers and public at large in various districts. Eight such campaigns were held. So far as the Transport Department is concerned it is submitted that the said Department is in the process of conducting training programme/seminar of drivers of schools vans/autorickshaws for road safety tips and behavior training with intention that the drivers will become role model for the travelling children regarding road safety. A training seminar for drivers has been conducted by the Regional Transport Office, Ahmedabad in cooperation with Association of School autorickshaw drivers and school van drivers, on 28.03.2016. 12. The learned Government Pleader thereafter fairly submitted that though the respondent authorities have taken sufficient care for implementation of various Circulars and provisions of law and for awareness, the petitioner can make suggestions for proper implementation thereof. 13. We have considered the submissions advanced by the learned advocates appearing for the parties. We have gone through the material produced on record. 14. As early as in the year 1992, Special Civil Application No. 8061 of 1992 came to be filed by the petitioner- Lok Adhikar Sangh by obtaining leave of the Court to pursue the same as Public Interest Litigation, raising questions of safety of commuters and public and against increasing number of road accidents and complaining against the total failure of the Government to control and reduce number of these incidents. The said petition was disposed of by Division Bench of this Court on 22.02.1999, giving certain directions for remedial measures. 15. Again certain grey areas in traffic management came to scrutiny of this Court in suo motu petition taken in Special Civil Application No. 13308 of 2004. By constituting a Committee of experts to study and report and on submission of report of the Expert Committee this Court has disposed of such petition by order dated 24.04.2006, in which following observations were made and directions are issued: "4.17. The next major issue before us is the safety of the school children who are being carried in vehicles known as auto rickshaw and Maruti Van. These are two popular modes of transporting children to the school in the major cities of the State. It transpires that for Maruti Van, there are no rules or regulations and except for registering the Van as transport vehicle, the owner of such Van is not bound by any special provision to ensure safety of the children and to charge reasonable and proper fee from the parents of such children. It is also brought to our notice that though there are certain rules framed for the auto rickshaw, they have never been implemented or observed by the owners of such vehicles. This has resulted into overcrowding of these vehicles and children with their legs dangling or keeping their heads outside the body of auto rickshaw, has become a common scene. Such dangerous traveling of the children is required to be curbed. The safety of the children is paramount. However, certain other aspects are also required to be kept in view while directing the Regional Transport Authority to frame certain rules in this behalf. The Government has stated before us that now the circulars with regard to school rickshaws and Maruti Vans vis-à-vis number of students to be carried in them are issued and for rickshaw the number is restricted to six children and for Maruti van 12 children. This is seriously opposed by the Association represented by Mr. Girish Patel. He has submitted that this will not only bring about the cut in the income of the vehicle owners substantially, but it may also cause additional financial burden on the parents. We have given our careful consideration to both these aspects as well as aspect of safety. This is seriously opposed by the Association represented by Mr. Girish Patel. He has submitted that this will not only bring about the cut in the income of the vehicle owners substantially, but it may also cause additional financial burden on the parents. We have given our careful consideration to both these aspects as well as aspect of safety. It appears to us that some relaxation in that number is required to be given. In our opinion, two more children upto the age of 12 years can be permitted in school rickshaws and two to three more children can be permitted for the Maruti Vans. Of-course ultimate decision on this count will be of the Government since the safety of the children is of a paramount interest. Simultaneously the Government may also explore the possibility of giving some concession to such vehicles for converting them in the taxis, making loans available for purchasing CNG vehicles on easy instalments, etc. It is also necessary that these vehicles should be registered as a special category with the Regional Transport Office and they should comply with the appropriate directions meant for such category of vehicles. The Regional Transport Authority should also, before registering vehicle in such category, examine the credential of the owner as well as the driver to be employed on such vehicle from the view point of their driving history and if it is apparently found that their credential are bad, the registration should be refused. 5. .... 5.1 .... 6. As stated above, since we found that the provisions of the Act as well as Rules framed thereunder were not being complied with strictly by the police as well as transport authorities and the Government, we have decided to initiate these proceedings and now we issue the following directions with a view to see that these provisions of the Act and the Rules are implemented strictly by the concerned authorities so as to minimize the road accidents and ensure public safety. In aforesaid background, we now propose to give following directions in addition to the directions given by this Court vide order dated 22nd February, 1999 and 9th May, 2005:- 6.1 to 6.9.... 10. The Government shall frame rules regarding carrying the school children in auto rickshaws, maruti vans and also create a separate category for these vehicles for the purpose of registration in the RTO. 11. 10. The Government shall frame rules regarding carrying the school children in auto rickshaws, maruti vans and also create a separate category for these vehicles for the purpose of registration in the RTO. 11. The RTO to grant permission only after verification of the credentials of the drivers as well as the owners vis-à-vis his driving history. The Department of the Education to monitor the record maintained by all schools in pursuance of its Circular with regard to the vehicles carrying the students." "7.1 We make it clear that the authorities should comply with the directions in this judgment in its true spirit and non-compliance of the directions contained in this judgment would amount to disobedience of the order passed by this Court, which may expose them to facing proceedings under the provisions of the Contempt of Courts Act." 16. This is yet another petition which has come by way of Public Interest Litigation, wherein the petitioner has focused on the issue of negligence by the State authorities in preventing the auto-rickshaws carrying school children in a highly irresponsible and in life-threatening manner. Along with the petition the petitioner has placed on record certain photographs to show the graveness of the issue, viz. irresponsible manner in which the school children are carried in auto rickshaws from home to school and back. Looking at the photographs it clearly demonstrates that the autorickshaws are carrying school children by overloading beyond the permitted capacity and the children are dumped in vehicles in irresponsible manner. It is also clear that the school children are made to sit at the side bars of the auto rickshaws with their legs and parts of body stretching out and they are made to sit on both the sides of the driver without any support or side bars. 17. As early as in the year 2006, Government of Gujarat has notified policy vide Circular No. MVV-School Rickshaw-1239 dated 03.03.2006. In the aforesaid policy, while referring to the relevant provisions under Motor Vehicle Rules, certain directions were issued with regard to number of school children to be permitted for the purpose of carrying them from house to school and return. Further, in Action Taken Report submitted to this Court by the authorities of the Transport Department, Home Department and Education Department, Future Action Plan is also indicated. Further, in Action Taken Report submitted to this Court by the authorities of the Transport Department, Home Department and Education Department, Future Action Plan is also indicated. Having perused the above said Future Action Plan and the policy which is already in force issued in 2006, we deem it appropriate to dispose of this petition with the following directions. "(i) The respondent-authorities are directed to hold awareness campaign involving parents, schools and association of auto rickshaws and vans for safety of children commuting in auto rickshaws and vans, (ii) The respondent-authorities are directed to initiate campaign of auto rickshaws, vans and school buses, (iii) The Police and Regional Transport (RTO) authorities shall conduct special checking drive where school buses, auto rickshaws and vans are plying against the rules and regulations. By making such special checking drives the concerned authorities shall take steps against drivers and vehicle owners who use vehicles by allowing children beyond the permitted capacity by taking appropriate action. (iv) The respondent-authorities are directed to effectively implement and take remedial measures as indicated in the Future Action Plan submitted to this Court. (v) The authorities of the Transport Department shall not issue any permit by permitting more number of children contrary to the provisions of the Motor Vehicles Act and the rules framed thereunder and the policy notified vide Circular No. MVV-School Rickshaw-1239 dated 03.03.2006 by the State Government." 18. With the aforesaid directions the petition is disposed of. No order as to cost.