SCA/13308/2004 1/49 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 13308 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE P.B.MAJMUDAR HONOURABLE MR.JUSTICE AKSHAY H.MEHTA ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = SUO MOTU - Petitioner(s) Versus STATE OF GUJARAT & 31 - Respondent(s) ========================================= = Appearance : SUO MOTU for Petitioner(s) : 1, MR DIPEN DESAI, AGP for Respondent(s) : 1 - 6. MS PAURAMI B SHETH appointed by the Court MR CZ SANKHLA for Respondent(s) : 1 - 2, 29, NOTICE SERVED for Respondent(s) : 7, 17, 27, MR JITENDRA MALKAN for Respondent(s) : 7, MS AMRITA M THAKORE for Respondent(s) : 8, MR MAULIN R RAVAL for Respondent(s) : 9, MR HS MUNSHAW for Respondent(s) : 10, 14,18 - 19. MR PRANAV G DESAI for Respondent(s) : 11, NOTICE NOT RECD BACK for Respondent(s) : 12,20 - 21, 28, MR RM CHHAYA for Respondent(s) : 13, MR AR THACKER for Respondent(s) : 15, MR PREMAL R JOSHI for Respondent(s) : 16, MR JR NANAVATI for Respondent(s) : 22, MR AMIT M PANCHAL for Respondent(s) : 23, MR PRASHANT G DESAI for Respondent(s) : 24, MR NIKHILESH J SHAH for Respondent(s) : 25, MR JASWANT K SHAH for Respondent(s) : 26, SCA/13308/2004 2/49 JUDGMENT None for Respondent(s) : 30, MRS SHILPA R SHAH for Respondent(s) : 31, GIRISH PATEL ASSOC for Respondent(s) : 32, ================================================================== CORAM : HONOURABLE MR.JUSTICE P.B.MAJMUDAR and HONOURABLE MR.JUSTICE AKSHAY H.MEHTA Date : 24/04/2006 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE AKSHAY H.MEHTA) 1. The advent of sophisticated automobile technology, introduction of easy loan facility, the availability of wide range of motor vehicles and the increase in urban population, have all contributed in taking the number of vehicular accidents and the resultant fatality and the injuries to an alarming proportion during recent times. At one point of time, though the motor cars were available at a lesser price than the prevailing, their users were less since during those days motor cars were not easily available, the range of motor cars was also very limited and there was hardly any loan facility available to the people. However, the time has now changed. The judicial notice also can be taken of the fact that the finance to purchase motor vehicles has become easily available, and there is growing tendency in the public at large to avail such facility, even at the cost of substantial cut in the monthly expenditure, which have brought tremendous increase in motor vehicles of different makes and kinds in the urban areas. The cities like Ahmedabad, Surat, Vadodara and SCA/13308/2004 3/49 JUDGMENT Rajkot in Gujarat seem flooded with motor vehicles of all categories. It is also a matter of grave concern that unlike the days not very far in the past, the students have taken fancy for motor vehicles and especially the two wheelers and it is also noticed that even the parents nurture such craze by buying vehicle for the children even when they have not become eligible to hold licence under the Motor Vehicles Act [hereinafter referred to as ' the MV Act'] and the Motor Vehicles Rules [hereinafter referred to as 'the Rules'] framed thereunder. The temptation on the part of the users of such sophisticated vehicles to drive their vehicles at the speed much in excess to the desired or reasonable speed on the public roads has become a major problem not only for the law enforcing agency but even for the citizens. The public safety today is in the doldrums. Almost every day more than one fatal accident in one part or the other of the State have been occurring either on the Highways or in any of the major cities or in rural area. There are different types of vehicular accidents in which the citizens lose their lives or sustain serious injuries. The accidents resulting due to collision between two vehicles, vehicle turning turtle on account of excessive speed are common so far four wheelers are concerned. Whereas fatal accidents of two wheelers are concerned, they are very common because of slipping of the vehicles. So far accident resulting due to collision between two vehicles is concerned, death is caused due to serious injuries suffered by the inmates of the vehicles on account of the impact; whereas the riders of two wheelers sustain SCA/13308/2004 4/49 JUDGMENT serious head injuries on account of their heads banging against the road with force causing brain haemorrhage. Apart from this, pedestrians also get killed because of vehicles running over them. The nature of accidents has remained the same over the years, but now the number of accidents has gone up phenomenally on account of the factors stated above. It also appears that for various reasons the number of vehicular accidents is not being brought under control. It may be stated here that the legislature has taken care of the hazards posed by the motor vehicles and to impose adequate control over it, it has enacted the M V Act. In the said Act various measures have been prescribed whereby the legislature has tried to regulate the vehicular traffic, to avoid or to minimize vehicular accidents, to safeguard the environment and to ensure public safety. Inspite of that the number of vehicular accidents has reached to such proportion that as if these provisions do not exist at all. 2. Way back in the year 1995 this Court had felt the urgent need to curb the danger posed to the public safety and had taken serious note of the total failure of the Government and the traffic police to control and minimize the number of road accidents. It had also felt then that it was absolutely necessary for this Court to ensure the public safety and to issue appropriate directions to the Government and to the police to implement the provisions of the M V Act, with all earnestness and to book the defaulters for committing the offences SCA/13308/2004 5/49 JUDGMENT under the M V Act as also the Penal Code. It therefore, had initiated suo-motu proceedings in the nature of public interest litigation and issued notices to various authorities responsible for the implementation of the provisions of the M V Act. The Court even at that time had felt it necessary to reduce the amount of pollution caused by the motor vehicles and, it had given its thoughtful consideration to this major issue related to the traffic. It appears that even earlier to this, public body named Lok Adhikar Sangh had approached this Court by filing Special Civil Application No. 8061 of 1992 in the nature of public interest litigation praying for issuance of appropriate direction on the traffic manning agencies. The Division Bench of this Court by a common CAV Judgment dated 22nd February, 1999 gave detailed directions to various authorities mainly with a view to see that the provisions of the M V Act are implemented by the concerned agencies effectively and efficiently with a view to regulate the traffic properly, minimize the vehicular accidents and control the pollution caused by the use of vehicles. 3. Almost 10 years thereafter, we have felt that the labour put in and the exercise carried out by this Court earlier has gone in vain since the Government and the concerned agency, namely the police of the Traffic Branch have completely ignored these directions and have given undesired latitude to the motor vehicle owners to drive their vehicles in a manner they like, totally SCA/13308/2004 6/49 JUDGMENT disregarding the provisions of law. The situation has deteriorated considerably now for the factors stated above. For this very reason, it was at this time, almost a year and a half back, we again decided to take up the issue of public safety by initiating suo-motu proceedings in the nature of public interest litigation, which can more or less be termed as continuation of earlier proceedings. Our anxiety on this issue has been adequately narrated by us in our order dated 11th October, 2004. The said order is required to be reproduced verbatim, which is as under :- “CORAM : HON'BLE MR.JUSTICE KSHITIJ R.VYAS and HON'BLE MR.JUSTICE AKSHAY H.MEHTA Date of Order: 11/10/2004 ORAL ORDER (Per : HON'BLE MR.JUSTICE AKSHAY H.MEHTA) 1. With the growing number of vehicular accidents in the city of Ahmedabad and other parts of the State, it has become a matter of grave concern of not only the Government, law enforcement authority but also of every citizen. Safety of the citizen is of paramount interest. Unfortunately the same is being overlooked by all concerned and the provisions relating to vehicular traffic are being flagrantly violated. For example the Sarkhej Gandhinagar Highway was not having heavy vehicular traffic some years back but with the lifting of ban on construction on the green belt, number of commercial buildings, SCA/13308/2004 7/49 JUDGMENT restaurants, clubs, religious temples and educational institutions have come up, not to ignore this Court. That has increased the vehicular traffic especially in the form of two wheelers and private cars substantially. This is over and above the continuous flow of heavy vehicles since this road serves link between South Gujarat and North Gujarat and further also State of Maharashtra in south and Rajasthan and onwards in the north. This road which was formerly known as highway, has now become S.G. Road and it has become one of the busiest roads of the city. Judicial notice can also be taken of the fact that on this road vehicular accidents at the rate of once a week or even more are taking place and many of them fatal. Similar is the situation of different areas in the city since the number of vehicles has increased by leaps and bounds during the recent years and with the sophistication in the machinery, both in two wheelers as well as four wheelers, to drive the vehicle with excessive speed has become craze with vehicle owners. In the process safety of the citizens is being completely disregarded. Almost every day there is news reporting of fatal accident having occurred in the city as well as in the other parts of the State including the Highways. This Court by judgment rendered in the case of Suo Moto v/s. Secretary Home Department dated 22/02/1999 in Special Civil Application No. 9988 of 1995 and cognate matter has given its anxious consideration to this grave problem. 2. This Court in those proceedings has identified the gray areas in traffic management and has issued directions as also recommendation in VII different parts including formation of committee of experts to make a detailed study and submit its report to this Court. Various aspects relating to vehicular traffic like safety, pollution, etc. SCA/13308/2004 8/49 JUDGMENT have been incorporated. Some of the items can be stated as under :- * Overall measures to minimise Road Accidents within the Cities/Townships and on Highways * Suggesting general corrective measures on the Roads within City/Townships qua existing traffic junctions, signals, islands, barricades, etc. along with such suggestions for future planning of better Roads/Highways. * Patrolling by police on Highways to check the speed, licence status and P U C of all the vehicles. * Curbing the menace of "Driving by Drunk" * Suggesting of the change in Road Pattern on Highways and in City/Townships in and around the "Accident Zones" * Establishment of Mobile Medical Units for rescue, immediate treatment and transit of the injured. * Implementing the existing Law -Rules and suggesting other and further law-rules for ensuring for front Lamp Lights on bicycles, and back lights and reflectors on the back of all automobiles and all man and cattle pulled/pushed vehicles. * Compulsory provision of providing reliever driver in all heavy vehicles, including State Transport and Private Buses making night SCA/13308/2004 9/49 JUDGMENT journey. * Compulsory wearing of helmet both by the Driver and Pillion Riders on all types of two wheelers. 3. Report of the Experts' Committee has been duly received. In the said report several important remedial measures have been suggested by the Committee. It, however, appears that all this has remained on paper only. There is no strict implementation of the same. Judicial notice can be taken of the fact that traffic police is completely oblivious to what is happening around them. The heavy vehicles in the form of State Transport Buses, the private Transport Buses, the Trucks have converted the Highways into death trap. Situation of the local traffic in different cities is also very grim. This Court cannot become silent spectator to all this. 4. Hence, the Registry of this Court is directed to issue notice returnable on 25th October, 2004 to the Director General of Police, State of Gujarat the Commissioners of Police of the cities of Ahmedabad, Vadodara, Surat, Rajkot and the Secretary, Ministry of Home Affairs, to appear before this Court and to state what measures are being taken to avert or minimize the number of vehicles or accidents in this city as well as in other parts of the State and whether recommendations of this Court as well as those made in the Report of the Experts' Committee are being implemented. The Registry is also directed to give number to this proceedings and place it before the regular Court taking up PIL matters along with the record of aforesaid petitions.” SCA/13308/2004 10/49 JUDGMENT 4. In this background, we have again closely examined this issue. 4.1. At this juncture, we may refer to certain provisions of the M V Act and also the Rules. Section 2 of the Act gives definitions of various terms. * Section 2 (34) of the Act defines “public place”. It means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access and includes any place or stand at which passengers picked up or set down by a stage carriage. * Section 2(35) of the Act defines “public service vehicle”. It means any motor vehicle used or adapted to be used for the carriage of the passengers for hire or reward and includes a maxicab, motorcab, contract carriage and stage carriage. * Section 65 of the Act empowers the State Government to make less and by virtue of it, the State is authorized to make rules for the purpose of carrying into effect the provisions of Chapter (IV), which pertains to Registration of Motor Vehicles. Chapter VIII of the Act deals with Control of Traffic. * Section 112 of the Act is in relation to the limits of speed. Sub- section (1) of Section 112 of the Act states that no person shall drive the SCA/13308/2004 11/49 JUDGMENT motor vehicle or cause or allow a motor vehicle to be driven in any public at a speed exceeding the maximum speed or below the minimum speed fixed for the vehicle under the Act. Sub-section (2) of the Act empowers the State Government or any authority authorized in this behalf by the State Government, if satisfied that it is necessary to restrict the speed of motor vehicles in the interest of public safety or convenience because of the nature of any road or bridge, by Notification in the Official Gazette, and by causing appropriate traffic signs to be placed or erected under Section 115 at suitable places, fix such maximum speed limits or minimum speed limits as it thinks fit for the motor vehicle. * Section 115 of the Act deals with the Power to restrict the use of vehicles. * Section 116 of the Act deals with the Power to erect traffic signs. * Section 118 of the Act authorizes the Central Government to frame driving Regulations. * Section 119 of the Act prescribes that every driver of the motor vehicle shall obey the traffic sings and drive his vehicle in conformity with the driving Regulations. * Section 135 of the Act authorizes to frame schemes for investigation of accident cases and wayside amenities etc. * Section 137 of the Act empowers the Central Government to SCA/13308/2004 12/49 JUDGMENT make rules with regard to provisions contained in Chapter VIII i.e., provisions with regard to control of traffic. * Section 138 of the Act empowers the State Government to make rules with regard to provisions contained in Chapter VIII i.e., provisions with regard to control of traffic. Chapter XIII of the Act deals with the Offences, Penalties and Procedures. * Section 177 of the Act deals with general provision for punishment of offences. It provides for imposition of penalty on the person contravening the provisions of the Act, for the first offence to the extent of Rupees One hundred and for second offence to the extent of Rupees Three hundred. * Section 179 of the Act deals with disobedience of orders, obstruction and refusal of information. It empowers the authority to impose fine on the defaulter, which may be to the extent of Rupees Five hundred. * Section 183 provides for penalty to be imposed on the person driving a motor vehicle at excessive speed. Excessive speed means more than the speed limit prescribed under Section 112 of the Act. For the first default the fine can be to the extent of Rupees Four hundred and thereafter for subsequent defaults fine to the extent of Rupees One thousand. SCA/13308/2004 13/49 JUDGMENT * Section 184 of the Act empowers the authority to impose fine on the person driving the motor vehicle dangerously. * Section 192 of the Act deals with imposition of penalty on the person using vehicle without registration. * Section 195 of the Act deals with imposition of minimum fine under certain circumstances. * Section 201 of the Act deals with imposition of penalty for causing obstruction to free flow of traffic. 4.2. Thus, it can be seen that the provisions of the Act by themselves are sufficient to form the requisite machinery and confer powers on the members of the Police force and the transport authorities to control and regulate the traffic in a proper manner so that no vehicle used in a public place causes any danger to the public in any form. The Government is also saddled with statutory duty to provide for the necessary set-up, frame rules and maintain overall supervision to give effect to these provisions to ensure public safety and to control pollution caused by the motor vehicles. The Government has power to constitute appropriate force for the enforcement of these provisions. In other words, the Government has power to create machinery for the implementation of the provisions of the M V Act and the Rules for the aforesaid purposes. The SCA/13308/2004 14/49 JUDGMENT Government is also, under the Constitution, required to shoulder the responsibility to safeguard the public interest. Thus, the Government has power and duty to see that the provisions of the M V Act are properly complied with and when it has been provided with adequate machinery for the said purpose, namely, the police force, it has to take every possible step to ensure public safety. Any connivance or negligence on this aspect would render the Government not only answerable to public but also answerable to the Court of law. 4.3. It may further be noted here that the public safety is one of the important aspects of the fundamental right as provided in Chapter III of the Constitution of India. Article 21 deals with right to life. Public safety falls within the ambit of Article 21 as right to life includes safe life. Thus anything which endangers or impairs, due to conduct of anybody, either in violation or in derogation of laws, the quality of life and living of the people as envisaged under Article 21, it is the duty of the concerned authority to prevent such violation or breach of law. It is, therefore, the bounden duty of the Government, the Police Force and the Transport Authority, all of which are clothed with ample powers by M V Act to control and regulate the traffic in an appropriate manner so that no vehicle being used in a public place causes any danger to the public in any form. When this duty is over-looked by these agencies, the Court SCA/13308/2004 15/49 JUDGMENT can certainly intervene and issue appropriate directions requiring them to enforce the provisions of the M V Act and also direct them to protect the fundamental right of the public at large. The Court can also interfere if there is a clear violation of constitutional or statutory provisions or non-compliance by the State of its constitutional or statutory duties. Since this Court has found that there is public danger and public wrong caused by the omission of the State or Public Authorities to efficiently discharge their duties, it has treated these proceedings in the nature of public interest litigation. 4.4. Keeping the aforesaid aspects in view, the Court, during the course of hearing, explored the grey areas again and also made exercise to ascertain the shortcomings of the Government, the Police Force and the Regional Transport Authority. At that time it was found by it that unauthorized encroachments on the public roads created major problem for the smooth flow of the traffic. It also came to the notice of this Court that in the earlier proceedings the Expert Committee was directed to examine issue with respect to wearing of head-gear [hereinafter referred to as 'helmet'] which was under active consideration of the Government as per Expert Committee's report, and subsequently the Government has also thought it fit to implement strictly the provisions of section 129 of the M V Act. It has then further noticed that the Government has taken some steps in the direction of the implementation of the SCA/13308/2004 16/49 JUDGMENT said provisions and with respect to users of two wheelers on the Highways the wearing of helmet by Notification dated 31st August, 2004 has been made compulsory. However, though the rules are framed for compulsory wearing of helmet in city and town areas, its implementation has been suspended for sufficiently long time by granting extension. This Court has also noticed that local authorities are granting permissions with respect to dispensing with parking areas in the buildings. This Court, therefore, felt need to issue immediate directions after ascertaining the grey areas with a view to see that things are amended immediately, hence by order dated 9th May, 2005 this Court issued following direction :- “4.1. All encroachments which are on public streets or which are on highways should be removed immediately. Due care should be taken to see that the encroachments which are made near corners of the roads or near the traffic junctions or traffic circles should be removed as soon as possible so as to see that such area of the road is made available for use of vehicular traffic and not for encroachers.” 4.2 Necessary direction for ensuring parking of vehicles in a particular manner should also be given to the police authorities. It should be seen that vehicles are parked absolutely away from the centre of the road so that more portion of the road is available for vehicular traffic. Any person parking a vehicle in an irregular manner, which is near the centre of the road or parked in an irregular and careless manner which obstructs the vehicular traffic, should be SCA/13308/2004 17/49 JUDGMENT strictly dealt with in accordance with law. For the aforesaid purpose also, the police inspector of the concerned area should be made responsible. 4.3. Similarly, it shall be ensured by the concerned police Inspector that there is no parking within reasonable distance from the junctions of