ROPPEN TRANSPORTATION SERVICES PVT LTD versus UNION OF INDIA & ORS.
[2023] 5 S.C.R. 571, Supreme Court of India, 2023
Outcome: Disposed off
Segment: Issues
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ROPPEN TRANSPORTATION SERVICES PVT LTD
v.
UNION OF INDIA & ORS.
(SLP (C) No. 3006 of 2023)
FEBRUARY 07, 2023
[DR. DHANANJAYA Y CHANDRACHUD, CJI,
PAMIDIGHANTAM SRI NARASIMHA AND
J. B. PARDIWALA, JJ.]
Motor Vehicles Act 1988 : ss. 2(1A), 93, 96 – Motor Vehicle
Aggregator Guidelines 2020 – Aggregator’s License – Claim of the
petitioner to provide the service of an aggregator for two wheeler
vehicles across the State of Maharashtra – Application for grant of
license – Rejected by the RTO since it did not comply with the
Guidelines of 2020 – Challenged to, before the High Court –
However, during the course of hearing, the State government issued
a notification wherein it noted that the issue of whether non-
transport vehicles ought to be permitted to be used as transport
vehicles including for aggregation and ride pooling requires
consideration – For said purpose, a Committee was constituted –
Pending the decision of the Committee, the State Government
prohibited the pooling of non-transport vehicles by aggregators in
order to ensure road safety of the general public and passengers at
large – High Court observed that the Guidelines of 2020 leave a
certain degree of latitude to the State Government and there is no
policy of the State Government on the basis of which the petitioners
would have an unrestricted right to obtain a licence – On appeal,
held: There is no inclination to entertain the challenge to the
notification – Petitioners
would be at liberty to pursue the alternate
remedy u/Art. 226 of the Constitution before the High Court – The
correctness of the order of the RTO stands subsumed by the decision
taken by the High Court to entrust the examination of the entire
issue by the Committee, before it decides on the use of non-transport
vehicles for the purposes of aggregation and ride pooling – Order
of the RTO indicates that it has been passed on the ground that the
provisions of the Guidelines of 2020 were not complied with – Once
the State Government takes a final decision on the submission of
the report of the Committee, the petitioners would be entitled to
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pursue their legal remedies after complying with such terms and
conditions as may be prescribed in the decision of the State
Government.
EXTRA ORDINARY/ORIGINAL JURISDICTION: Special
Leave Petition (Civil) No. 3006 of 2023.
From the Judgment and Order dated 07.03.2022 of the High Court
of Judicature at Bombay in PILL No. 9775 of 2020.
With
Special Leave Petition (Civil) Nos. 3007 and 3008 of 2023, Writ
Petition (Civil) Nos. 95 and 142 of 2023.
Mukul Rohatgi, D. S. Naidu, Sr. Advs., Ms. Fereshte Sethna, Ms.
Anuradha Dutt, Ms. Suman Yadav, Chaitanya Kaushik, Abhishek Tilak,
Ms. Praprati Kedia, Ms. Shivani Sanghavi, Suyash Bhave, Mohit Tiwari,
Ashish Mishra, Shubham Airi, Aman Dutta, Ms. B. Vijayalakshmi Menon,
Gaurav Agrawal, Ms. Akriti Chaubey. Advs. for the Petitioner.
Tushar Mehta, SG, Ms. Indira Jaising, Ms. Gayatri Singh, Sr. Advs.,
Siddharth Dharmadhikari, Aaditya Aniruddha Pande, Shrirang B. Varma,
Abhikalp Pratap Singh, Bharat Bagla, Ms. Kirti Dadheech, Shantnu
Sharma, Bhuvan Kapur, Rohit Khare, Ms. Shreya Saxena, Ms. Nupur
Kumar, Paras Nath Singh, Ms. Ronita Bhattacharya Bector, Rohin Bhatt,
Anand Dilip Landge, Akshay Deshmykh, Avineesh Jha, Advs. for the
Respondents.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, CJI
1. Permission to file the Special Leave Petitions granted.
2. Delay condoned.
3. Special Leave Petition (Civil) No 3006 of 2023 arises from an
interim order of the
Division Bench of the High Court of Judicature at
Bombay dated 7 March 2022. In Writ Petition (Civil) Nos 95 of 2023
and 142 of 2023 under Article 32 of the Constitution, the petitioners seek
to challenge the validity of a notification dated 19 January 2023 issued
by the State of Maharashtra. Special Leave Petition (Civil) Nos 3007
and 3008 of 2023 arise from a judgment of the High Court of Judicature
at Bombay dated 20 January 2023.
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4. The Motor Vehicles Act 19881 was amended by Amending Act
32 of 2019, inter alia, to comprehend aggregators within the scope of
its regulatory provisions. The expression “aggregator” has been defined
in Section 2(1A) to mean a digital intermediary or market place for a
passenger to connect with a driver for the purpose of transportation.
Section 93 forms a part of Chapter V which deals with the control of
transport vehicles. Section 93 was also amended in 2019 to cover
aggregators. Section 93, as amended, reads thus:
“93. Agent or canvasser or aggregator to obtain licence.-
(1)
No person shall engage himself-
(i)
as an agent or a canvasser, in the sale of tickets for travel
by public service vehicles or in otherwise soliciting custom
for such vehicles, or
(ii)
as an agent in the business of collecting, forwarding or
distributing goods carried by goods carriages,
(iii)
as an aggregator,
unless he has obtained a licence from such authority and
subject to such conditions as may be prescribed by the State
Government.
Provided that while issuing the licence to an aggregator the
State Government may follow such guidelines as may be
issued by the Central Government:
Provided further that every aggregator shall comply with
the provisions of the Information Technology Act, 2000 (21
of 2000) and the rules and regulations made there under.”
5. The effect of the amended provision is that no person can act
as an aggregator without a licence. The licence is to be
“from such
authority and subject to such conditions as may be prescribed by the
State Government”. In terms of the first proviso to Section 93(1), the
State Government, while issuing a licence to an aggregator, “may follow”
the guidelines issued by the Central Government. Section 96 confers a
rule making power on the State Government for implementing the
provisions of Chapter V.
1 “Act”
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6. Following the amendment of the provisions of the Act in 2019,
the Union Government in the Ministry of Road Transport and Highways
formulated the Motor Vehicle Aggregator Guidelines 2020. The Guidelines
commence with a prefatory statement that they have been issued “as
guiding framework for State Government for issuance of licenses to
transport aggregators and for the purposes of regulating the business
conducted by such aggregators”. The guidelines have been issued in
terms of the amended provisions of the statute, including Section 93,
which stipulates that while issuing a licence to an aggregator, the State
Government may follow such guidelines as may be issued by the Central
Government. The Guidelines of 2020 contain diverse provisions; among
them:
(i)
Clause 4 which deals with the eligibility of an aggregator;
(ii)
Clause 5 which provides conditions for the grant of a licence
to an aggregator;
(iii)
Clause 7 which lays down compliances with regard to
drivers;
(iv)
Clause 8 which enunciates compliances with regard to
vehicles;
(v)
Clause 9 which refers to compliances with regard to
aggregators’ apps and websites;
(vi)
Clause 10 which stipulates compliances to ensure safety
among other provisions; and
(vii)
Clause 13 which makes provisions for the regulation of
fares.
7. Clause 15 of the Model Guidelines is extracted below:
“15.
Aggregatlon of non-transport vehicles by Aggregators:
(1)
ln furtherance of the
Central and State Government’s
objective of reduction in traffic congestion and automobile
pollution, and effective asset utilizations, non-transport
vehicle pooling may be provided by Aggregator unless
prohibited by the State Government. Rationale for such
prohibition shalI be specified in writing and accessible on
the transport portal of the State Government.
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(2)
ln addition to the compliances mentioned above in these
guidelines, as may be applicable, the following shall be
complied with by the Aggregator seeking to aggregate non-
transport vehicles:
(a)
A maximum of four ride-sharing intra-city trips on a
calendar day and a maximum of 2 ride-sharing inter-city
trips per week shall be permitted for each vehicle with the
driver, integrated with the Aggregator.
(b)
The vehicle integrated under this Clause 15 shall obtain an
insurance of at least Rs. 5 lakhs for the ride-sharers in the
vehicle, other than the owner or driver integrated with the
Aggregator.”
8. Clause 15(1) stipulates that the Central and the State
Governments seek to pursue the objective of reducing traffic congestion
and automobile pollution as well as effective asset utilization. However,
clause 15 also stipulates that the pooling of non-transport vehicles may
be provided by the aggregator unless prohibited by the State Government.
The rationale for such a prohibition has to be specified in writing by the
State Government and has to be accessible on its transport portal.
9. Government of Maharashtra has not formulated any rules in
relation to aggregators for the purpose of enforcing the provisions of
Chapter V, more particularly, Section 93(1). The first proviso to Section
93 stipulates that while issuing a licence to an aggregator, the State
Government may follow such guidelines as may be issued by the Central
Government. The Guidelines which
have been issued by the Central
Government have a persuasive value. They are not mandatory. When
the State Government formulates rules in pursuance of its power under
Section 96, it may also bear in mind the Guidelines which have been
framed by the Union Government in 2020. Both in terms of the first
proviso to Section 93(1) and the plain terms of the Guidelines, it is evident
that while these Guidelines have to be borne in mind, the ultimate decision
is to be arrived at by the State Government while considering whether to
grant a licence and in regard to the formulation of rules in pursuance of
the general rule making power under Section 96.
10. In the present case, the first petitioner in SLP(Civil) No 3007
of 2023 is an aggregator within the meaning of the amended provisions
of the statute. The case relates to the claim of the petitioners to provide
the services of an aggregator for two wheeler vehicles across the State
ROPPEN TRANSPORTATION SERVICES PVT LTD v. UNION OF
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of Maharashtra. The first petitioner made an application for the grant of
a licence. By an order dated 21 December 2022, the Road Transport
Officer at Pune2, rejected the application on the ground that it did not
comply with various terms and conditions of the Guidelines of 2020. The
relevant part of the order of the RTO is extracted below:
“Decision:
1.
Two Wheeler Bike Taxi Aggregator License : Applicant
M/s.. Roppen Transportation Services Pvt. Ltd. for getting
his two wheeler bike taxi aggregator license Application
dated 30/11/2022 Important matters in Motor Vehicle
Aggregate Rules- 2020 viz. 4 (3), 5 (1), 5(2), 5(3), 7(1)(c),
7(1)(1), 7(1)(g) ), 7(1)(h), 7(2)(a), 7(2)(b), 7(2)(c), 7(2)(h),
7(2)(k), 7(2) (m), 8(2), 8(3), 8(5), 8(6), 8(10), 9(1), 9(2),
9(3) and 13 are not complete. After verification, lack of
facility of simulator and induction training, operation of app
without agitator license, all submitted undertaking without
official signature and stamp, lack of sufficient experience
of vehicle drivers, registration of two-wheelers not in
transport category, etc. have been found incomplete. Also
among the documents submitted are insurance certificate,
fitness certificate, license, pollution control certificate, etc.
for some vehicles. Legal documents are not attached (Please
see Table No. 1 on Page No. 5). Also in the State of
Maharashtra, no such scheme/ scheme of bike taxi has been
implemented by the
government or the state transport
authority. Also, the bike taxi type of license /license is not
issued. Also, there is no fare structure policy for bike taxis.
Therefore, for the above reasons the regional transport
authority decided to reject Rappen’s two-wheeler bike taxi
application. The said decision should be informed to the
Applicant (M/s. Rappen Transportation Services Pvt. Ltd.)
According to Sections 89, 90 of the Motor Vehicle Act,
1988 and Rule 97 of the Maharashtra Motor Vehicle Rules,
1989, an appeal can be submitted to the State Transport
Appellate Tribunal, Mumbai (The State Transport Appellate
Tribunal) within 30 days.
2 “RTO”
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2.
Three Wheeler Taxi Aggregator License : Applicant M/s
Ropan Transportation Services Pvt Ltd. His application
dated 30/11/2022 for obtaining three wheeler taxi aggregator
license important points in Motor Vehicle Aggregator Rules
2020 viz point No.4 (3), 5 (1), 5 (2), 5(3), 7 (1) (b), 7 (1) (c),
7 (1) (d), 7 (1) (e), 7 (1) (f), 7 (1) (g), 7 (1) (b), 7 (2) (3), 7
(2) (b), 7 (2) (c), 7 (2) (h), 7 (2) (k), 7 (2) (m), 8 (2), 8 (3),
8 (5), 8 (6), 8 (10), 9 (1), 9 (2), 9 (3) and 13 are not perfect.
Absence of simulator and induction training facility after
application verification, App running without activator
license, All submitted undertaking without official signature
and stamp, Insufficient experience of drivers, No GPS
system in vehicles, approved by Regional Transport
Authority, Pune Information not provided as per fare basis,
etc. imperfections have been found. Also, in the documents
submitted, some legal documents such as insurance
certificate, vehicle license, fitness certificate, license, public
transport service badge, pollution control certificate, etc.
are not attached. (Please refer Table No. 2 on Page No.9)”
11. The petitioners instituted a writ petition before the High Court
of Judicature at Bombay in order to challenge the legality of the decision
of the RTO. During the course of the hearing, the High Court was
apprised of the fact that on 19 January 2023, the State Government had
issued a notification bearing on the issue.
12. The
notification issued by the State Government on 19 January
2023 is extracted in its entirety below:
“Home Department
Madam Cama Marg
Hutatma Rajguru Chowk,
Mantralaya, Mumbai 400 032.
Dated the 19th January 2023.
No.MVR-0821/C.R.95/TR-2 Whereas, the Government of India
has, vide Ministry of Road Transport and Highways (Transport),
Letter No. F. No. 1601119/2019-T, dated the 27th November 2020,
issued the Motor Vehicle Aggregator Guidelines, 2020 (hereinafter
referred to as “the said Guidelines”), under the proviso to sub-
section (1) of section 93 of the Motor Vehicles Act, 1988 (59 of
1988);
ROPPEN TRANSPORTATION SERVICES PVT LTD v. UNION OF
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And whereas, clauses 11 and 15 of the said Guidelines provides
for ride pooling and aggregation of non-transport vehicles by
aggregators, respectively. Sub- clause (1) of said clause 15
empowers the State Government to provide ‘Rationale’ for
prohibition of non-transport vehicles pooling by aggregators;
And whereas, it is observed that, use of non-transport vehicles
(including two wheelers, three wheelers and four wheelers) as
transport vehicles is on the rise enormously and raises serious
practical and security concerns of the passengers and which may
cause serious threat to the road safety of general public and
passengers, at large;
And whereas, the number of vehicles registered in the non-
transport category is very large, therefore the non-transport
vehicles registered outside the State of Maharashtra may also be
used for the purpose of vehicle aggregation and may affect the
economic viability of the vehicles operating on valid permits in the
State of Maharashtra;
And whereas, the issue of whether non-transport vehicles can be
permitted to be used as transport vehicles, including for aggregation
and ride pooling thereof requires detailed consideration regarding
terms and conditions, framework and guidelines thereof. Therefore,
the State Government has constituted the committee to study the
said issues and to give recommendations thereof;
And whereas, the Government considers it expedient to prohibit
the pooling of
non-transport vehicles by aggregators in order to
ensure road safety of the general public and passengers at large
in the State of Maharashtra;
Now, therefore, the Government of Maharashtra, in pursuance of
clause 15 of the Motor Vehicle Aggregator Guidelines, 2020,
hereby prohibits the use of non-transport vehicles (including two
wheelers, three wheelers and four wheelers) for the purposes of
aggregation and ride -pooling thereof.
By order and in the name of
the Governor of Maharashtra
(R.M. Holkar)
Joint Secretary to Government”
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13. By the above decision, the State Government has noted that
the issue of whether non-transport vehicles ought to be permitted to be
used as transport vehicles including for aggregation and ride pooling
requires consideration. A Committee was constituted by the State
Government on 12 January 2023. Pending the decision of the Committee,
the State Government has prohibited the pooling of non-transport vehicles
by aggregators “in order to ensure road safety of the general public and
passengers at large” in the State of Maharashtra. The Committee which
has been constituted by the State Government on 12 January 2023 is
chaired by a former IAS officer consisting, inter alia, of the Additional
Director General of Police and representatives of the Transport
Department and the Maharashtra State Road Transport Corporation.
14. The High Court adjudicated upon the challenge to the order of
the RTO dated 21 December 2022. The High Court recorded that counsel
appearing on behalf of the petitioners informed the Court that they would
consider whether or not to challenge the notification dated 19 January
2023 separately and at that stage, the challenge was confined to the
order of 21 December 2022 issued by the RTO. The High Court has
also proceeded to observe that the Guidelines of 2020 leave a certain
degree of latitude to the State Government and there is no policy of the
State Government at the present point on the basis of which the petitioners
would have an
unrestricted right to obtain a licence.
15. Mr Mukul Rohatgi, senior counsel appearing on behalf of the
petitioners, submitted that many of the requirements of the Guidelines of
2020 on the basis of which the application for a licence was rejected are
unworkable. This has been seriously in contest since Mr Tushar Mehta,
Solicitor General appearing on behalf of the State of Maharashtra, has
urged that the Central Guidelines are intended to ensure, above all, the
safety of the passengers and drivers for which purpose certain
requirements have been introduced.
16. The correctness of the order of the RTO rejecting the
application for a licence on 21 December 2022 is now overshadowed by
the subsequent decision of the State Government arising out of its
notification dated 19 January 2023. The State Government has
categorically taken a decision that the issue as to whether non-transport
vehicles should be permitted to be used as transport vehicles including
for aggregation and ride pooling merits detailed consideration. Pending
the decision of the Committee, the State Government has taken a decision
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to prohibit the use of non-transport vehicles for the purpose of
aggregation.
17. There was no challenge before the High Court to the notification
dated 19 January 2023. Two petitions have now been instituted before
this Court under Article 32 of the Constitution for the purpose of
challenging the notification of the State Government. We are not inclined
to entertain the challenge to the notification dated 19 January 2023 of
the Home Department of the State Government in proceedings under
Article 32 of the Constitution. The petitioners would be at liberty to
pursue the alternate remedy under Article 226 of the Constitution before
the High Court. The correctness of the order of the RTO dated 21
December 2022 stands subsumed by the decision which has been taken
by the High Court to entrust the examination of the entire issue by the
Committee, before it decides on the use of non-transport vehicles for
the purposes of aggregation and ride pooling.
18. During the course of the hearing, Mr Mukul Rohatgi submitted
that while, on the one hand, the observations in paragraph 57 of the
impugned judgment of the High Court reserve liberty to the petitioners
to challenge the notification dated 19 January 2023, the observations in a
subsequent part of the judgment, namely, paragraph 59 would preclude
such a challenge.
19. In order to allay the above grievance, it needs to be clarified
that while considering a challenge to the
notification dated 19 January
2023, the High Court shall not consider itself bound by its observations in
paragraph 59. At any rate, the latter observations are only in the context
of the challenge to the decision of the RTO dated 21 December 2022
which alone was a subject matter of the proceedings before the High
Court.
20. In the above backdrop, we grant liberty to the petitioners to
move the High Court under Article 226 of the Constitution for the purpose
of challenging the notification of the State Government dated 19 January
2023. The High Court shall consider any such challenge uninfluenced by
the observations contained in the impugned judgment and order dated 20
January 2023.
21. The order of the RTO dated 21 December 2022 indicates that
it has been passed on the ground that the provisions of the Guidelines of
2020 were not complied with. Once the State Government takes a final
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decision on the submission of the report of the Committee, the petitioners
would be entitled to pursue their legal remedies after complying with
such terms and conditions as may be prescribed in the decision of the
State Government. The State Government shall take a final decision on
or before 31 March 2023. The Committee shall take its final decision on
or before 15 March 2023 so as to leave time to the State Government to
take a considered decision by the end of March 2023.
22. The petitions are accordingly disposed of.
23. Pending applications, including application for intervention,
stand disposed of.
Nidhi Jain
Petitions disposed of.
(Assisted by : Tamana, LCRA)
ROPPEN TRANSPORTATION SERVICES PVT LTD v. UNION OF
INDIA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, CJI]