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RM. Swamy v/s Government of India, Rep. by its Secretary, Ministry of Home Affairs, New Delhi & Others


    Writ Petition No. 7670 of 2020

    Decided On, 18 May 2020

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR.JUSTICE M. SATHYANARAYANAN & THE HONOURABLE DR.(MRS.) JUSTICE ANITA SUMANTH

    For the Petitioner: Ajay Khose, Advocate. For the Respondents: R1, G. Rajagopalan, Assistant Solicitor General assisted by N. Ramesh, Standing Counsel, R3 to R5, R. Udayakumar, R6, K. Moorthy, R7, Kathiresan, R8, CSK. Sathish, R11, Sundaravadanan, Advocates.



Judgment Text


(Prayer: PETITION filed under Article 226 of the Constitution of India praying for the issuance of Writ of MANDAMUS directing the respondents to issue a clear, definite detailed and comprehensive guidelines and instructions for the safety and precautionary measures for the drivers, conductors and other staffs and for the travelling public/passengers, so as to prevent the spread of Covid-19 pandemic and to publicize such instructions through all print and electronic media and other modes to create awareness among the staff and public in advance, by taking into account the suggestions and request made in the representations of the petitioner’s union dated 08.05.2020 and in this writ petition and by incorporating the same in the instructions and the guidelines, before commencing the operation of buses on and from 18.05.2020 and to extend such comprehensive instructions and guidelines to all public transport operators/ bus operators including the private bus operators and to deploy sufficient police force/ regulation staff and volunteers at every terminus/ bus stand/bus stop so as to manage and request the crowd and so as to ensure the social distancing, till normally is restored and direct the respondents 1 to 5 to waive all the taxes and fees, such as road tax, entry tax, toll fee etc., and permit and FC renewal charges and also to bear the difference in operation cost due to the imposition of restriction to allow only below 50% of the capacity of the bus by way of compensation till the Covid-19 pandemic crisis in order and normally is restored.)

Dr.(Mrs.) Anita Sumanth, J.

1. Heard Mr.Ajay Khose, learned counsel for the petitioner, Mr.G.Rajagopalan, learned Assistant Solicitor General, assisted by Mr.N.Ramesh, learned standing counsel appearing for R1 and R2, Mr.R.Udayakumar, learned counsel appearing for R3 to R5, Mr.K.Moorthy, learned counsel appearing for R6, Mr.Kathiresan, learned counsel appearing for R7, Mr.CSK.Sathish, learned counsel for R8 and Mr.Sundaravadanan, learned counsel for R11.

2. The petitioner has raised the following prayers: To direct the respondents to issue a clear, definite detailed and comprehensive guidelines and instructions for the safety and precautionary measures for the drivers, conductors and other staffs and for the travelling public/passengers, so as to prevent the spread of Covid-19 pandemic and to publicize such instructions through all print and electronic media and other modes to create awareness among the staff and public in advance, by taking into account the suggestions and request made in the representations of the petitioner’s union dated 08.05.2020 and in this writ petition and by incorporating the same in the instructions and the guidelines, before commencing the operation of buses on and from 18.05.2020 and to extend such comprehensive instructions and guidelines to all public transport operators/ bus operators including the private bus operators and to deploy sufficient police force/ regulation staff and volunteers at every terminus/ bus stand/bus stop so as to manage and request the crowd and so as to ensure the social distancing, till normally is restored and direct the respondents 1 to 5 to waive all the taxes and fees, such as road tax, entry tax, toll fee etc., and permit and FC renewal charges and also to bear the difference in operation cost due to the imposition of restriction to allow only below 50% of the capacity of the bus by way of compensation till the Covid-19 pandemic crisis in order and normally is restored.

3. The prayers are wide ranging and encompass various measures for the regulation of transport facilities. We are of the view that the first aspect of the prayer concerns public interest, relating to regulation of public transport during the times of the on-going COVID – 19 pandemic and we will consider the same in due course.

4. The second limb of the prayer seeks a direction to the respondent authorities to waive the imposition of road tax, entry tax and other levies on transport operators and the petitioner confirms that the prayer is raised solely in relation to State Transport Corporations and not Private Transport Operators.

5. We are of the considered view that these are matters that concern fiscal policy and it is not for the petitioner, who claims to be acting in public interest, to seek the benefit of waiver of fiscal levies in regard to specific entities. It is after all for the concerned entities to seek waiver of the levies if at all they believe they are entitled to the same. For this reason, we are not at all inclined to consider the prayers of the petitioner insofar as they relate to waiver of statutory taxes and charges and reject the same in limine.

6. As far as the first limb of the prayer is concerned in relation to the regulation of transport, the Government of Tamil Nadu has issued four (4) Letters dated 24.03.2020, 17.04.2020, 06.05.2020 and 17.05.2020 setting out various measures which in their view would address the issue of regulation of transport during the times of pandemic.

7. We find the Letters are comprehensive and extract the same in so far as they relate, and are relevant to this issue. The first letter issued in this regard is extracted below:

“TAMIL”

8. The second letter dated 17.04.2020 is extracted below:

Dharmendra Pratap Yadav, I.A.S., Chairman’s Office,

Principal Secretary to Government Transport Department

and Chairman of TN.STUs. Secretariat, Chennai-9

Letter No.133/Ch5/Ch.O/2020

Date:17.04.2020

To

The Managing Directors of all STUs

Sir,

Sub: Corona Virus-Covid-19-measures to be followed post lockdown-Instructions issued- Reg.

***

The Managing Directors of all STUs are hereby instructed to implement following measures post lockdown without fail.

1. All buses should be thoroughly disinfected everyday with effective disinfectant. While procuring the disinfectant, it should be ensured that disinfectant used possess effective strong to act as various injection agents upto 16 hrs.

2. All Drivers, Conductors and the Connected Staff should necessarily be provided with a set of washable and reusable masks and gloves.

3. Weekly fleet size and routes to be operated should be worked out by each STU as per assessment of demand for the next two weeks.

4. All buses should be provided with hand sanitizers and all the passengers alighting should be sprayed with sanitizer in their hand. All Managing Directors should assess requirements of hands sanitizer accordingly and make procurement. It would be ideal to stitch cloth masks by procuring good quality cloth and provide a set of these masks to each Staff/Crew members so that it can be washed and reused.

5. Time keeper/Conductor at bus stands should ensure that all passengers should wear masks at the time of entry. No passenger should be permitted to travel in the bus without wearing masks. Advance publicity on large scale should be made in this regard so that the travelling public is well aware of this prescription to avoid last minutes arguments. Further, sufficient quantity of masks may be stored in the buses under the protection of conductor to distribute to the passengers on collection of cost if they do not have their own mask. Passengers may be allowed to use their own clothes/scarps etc., to use as mask, but it should be ensured that they cover their face with such mask during travel.

6. All drivers and conductors should ensure social distancing between passengers when they seat inside the buses and themselves also.

7. In addition to above, the Managing Directors are requested to evaluate a system to find out the contact numbers of alighting passengers before travel. The contact numbers (Mobile No.) of the persons buying monthly season tickets and advance reservation tickets can be captured easily. For the daily ticket passengers, the Managing Directors need to devise a system to collect details.

All the Managing Directors of STUs are requested to follow the above instructions without fail post lockdown.

The receipt of the Circular should be acknowledged.

Sd/-xxx

Chairman

/true copy/forwarded/by order/

9. The above Letter was in force till it stood withdrawn by subsequent Letter dated 06.05.2020 as extracted below. The above Letter, though withdrawn, has been extracted solely to illustrate that the State has been issuing measures periodically to address the issue of transport regulation and to place the measures taken, in sequence. The next letter issued in this regard is extracted below:

Dharmendra Pratap Yadav, I.A.S., Chairman’s Office,

Principal Secretary to Government Transport Department

and Chairman of TN.STUs. Secretariat, Chennai-9.

Letter No.133/Ch5/Ch.O/2020

Date:06.05.2020

To

The Managing Directors of all STUs

Sir,

Sub: Corona Virus-Covid-19-Standard Operating Procedures (SOPs) to be followed post lockdown-Instructions-issued-Reg.

Ref: Letter No.133/Ch5/Ch.O/2020, dated: 17.04.2020

***

Please refer the circular vide reference cited and which has also been withdrawn due to administrative reasons. Now in continuation of the circular withdrawn, the Managing Directors of all STUs are hereby instructed to make preparedness to implement the following Standard Operating Procedures (SOPs) post lockdown without fail.

SOPs for Buses and Transport Corporation

1. To start with, ensure supply of buses and frequencies as per need and any change should be reviewed after initial operation.

2. If possible, increase supply of buses/frequency on high demand routs (from historical data of normal operational day).

3. Maximum allowable total passenger capacity should be below 50%.

4. Provision for marking of seats and standing locations for passengers to maintain requisite social distancing.

5. Allow rear door for boarding (Entry) and front door for alighting of passengers (Exit) to avoid physical contact between them.

6. Disinfecting buses after completion of every trip is important.

7. Use of air conditioner in buses should be avoided, as it help the virus survive for longer period. Since the virus can survive in the air for sometime, opening windows help achieve rapid air exchange.

SOPs for Passengers

8. Mandatory for the boarding passenger to cover their mouth with a mask, cloth (as per Government advisory) failure of which, a passenger must be denied entry into the bus.

9. Use the notified door for boarding (Entry) and alighting (Exit) and marked location for seating/standing.

10. Maintain a distance at least 6 feet (1.8m) from each other

(i) While boarding and alighting the bus and

(ii) Waiting at the bus stops.

SOPs for Bus Driver

11. All drivers (and other on baord staff) should have their temperatures checked before taking up their duty on a shift basis.

12. To minimize physical contact between Driver and Passengers, Driver area should be separated by using a transparent scree/curtain.

13. Mandatory use of mask and gloves by the Driver (protecting clothing if made available).

SOPs for Ticketing and Conductor

14. All Conductors (and other onboard staff) should have their temperatures checked before taking up their duty on a shift basis.

15. Mandatory use of mask and gloves by the Conductor (protective clothing if made available).

16. Provision of hand sanitizer with the Conductor.

17. Role of Conductor should be a “Crowd Manager” inside the bus and at halt locations.

SOPs for Bus Terminals/Depots/Interchanges

18. Buses should stop at a minimum distance of 5 meters from each other at marked locations, to avoid crowding of Passangers.

19. Crowd management by deploying additional staff, since the number of Passengers will be large at such locations.

20. Frequent and regular sanitisation of Terminal/Depots/Interchanges. Better information to Passengers and Communication with Staff

21. Avoid use of exchange tender currency.

22. Plan for issue of day cards and popularize monthly passes through more selling points and other means.

23. Ensure que maintenance during boarding and physical distance during alighting of passengers at bus stops and terminals.

24. Adjust stop timing at bus stands accordingly.

25. Promote QR code based payments, Mobiles payments and other methods of EPayment viz, PayTM, Google Pay, Jio Pay etc.,

All the Managing Directors of STUs are requested to follow the above instructions without fail post lockdown.

The receipt of the Circular should be acknowledged.

Sd/- xxx

Chairman

Copy to:

Additional Secretary to Government,

PA to Deputy Secretary to Government,

PS to Principal Secretary to Government,

Transport Department, Secretariat, Chennai.

/true copy/forwarded/by order/

Sd/-…

Senior Deputy Manager (Admin)

10. The National lock-down imposed initially till the 3rd of May 2020 stood extended from the 4th of May 2020 till the 31st of May 2020 and an Order bearing No.40-3/2020-DM-I(A) has been issued by the Ministry of Home Affairs, Government of India on the 17th of May, 2020 to further regulate the spread of COVID-19 in the country. The relevant portion of the Order, as aforesaid, is extracted below:

Whereas, Chairperson NEC in exercise of the powers conferred under Section 10(2)(I) of the Disaster Management Act, 2005, has issued Orders of even number on lockdown measures dated 24.03.2020, 29.03.2020, 14.04.2020, 15.04.2020 and 01.05.2020. Thus, in exercise of powers under section 6(2)(i) of the Disaster Management Act, 2005, the NDMA issued Order number 1-29/2020 – PP dated 17.05.2020 directing the Chairperson, NEC that lockdown measures to contain the spread of COVID-19 be continued to be implemented in all parts of the Country, for a further period upto 31.05.2020 to all Ministries/Departments of Government of India, State/Union Territory Governments and State/Union Territory Authorities as follows:

. . . .

3. The following activities shall be permitted with restrictions, except in the Containment Zones:

i. Inter-State movement of passenger vehicles and buses, with mutual consent of the State(s)/UT(S) involved.

ii. Intra-State movement of passenger vehicles and buses, as decided by the States and UTS

iii. Standard Operating Procedures (SOPs) for movement of persons, as mentioned in Annexure I, shall continue to operate.

. . . .

10. Special directions to ensure movement of persons and goods in certain cases

i. All States/ UTs shall allow inter-State and intra-State movement of medical professionals, nurses and para medical staff, sanitation personnel andambulances, without any restriction.

ii. AllStates/UTs shall allow inter-State movement of all types of goods/ cargo, including emptytrucks.

iii. No State/UT shall stop the movement of any type of goods/ cargo for cross land-border trade under Treaties with neighbouring countries.

. . . .

Standard Operating Procedures (SOPs) issued by MHA

i. SOP on transit arrangement for foreign national(s) in India issued vide Order dated April 02, 2020.

ii. SOP on movement of stranded labour within States/ UTs, issued vide Order dated April 19, 2020

iii. SOP on sign-on and sign-off of Indian seafarers, issued vide Order dated April 21, 2020

iv. SOP on movement of stranded migrant workers, pilgrims, tourists, students and other persons, issued vide Order dated April 29, 2020 and Order dated May 01, 2020.

v. SOP on movement of Indian Nationals stranded outside the country and of specified persons to travel abroad, issued vide Order dated May 5, 2020.

vi. SOP on

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movement of persons by train, issued vide Order dated May 11, 2020 11. Strict enforcement of the guidelines was mandated and State/ UT Governments were specifically directed not to dilute the above stipulations issued under the Disaster Management Act, 2005, in any manner whatsoever, under threat of penal action. 12. Mr.Udayakumar, learned counsel appearing for the State, confirms unequivocally that all the measures set out thus far by the State Government have, and are being implemented scrupulously. We trust and believe that this position will continue without any compromise whatsoever in the interests and safety of the public. Thus, transportation is, at present, under regulation and upon a consideration of the measures taken thus far, we are of the view that the same are adequate, subject to the measures being observed and enforced scrupulously. 13. In view of our conclusion as aforesaid, we do not believe that there is any necessity to keep this Writ Petition pending and with the above observations and direction, this Writ Petition is closed. No costs. 14. Seeing as it is expected that transport facilities across the State/Country would be opened up post 31.05.2020, perhaps in phases, it is necessary for the State machinery to apply its mind and have in place a concerted and comprehensive policy as to the measures that are intended to be put in place in this regard. 15. The respective Transport Corporations shall submit their inputs and Reports of the proceedings at the ground level to the State via e-mail, and the State shall take into account the same, formulate a comprehensive policy and place the same before this Court on or before 01.06.2020. 16. List this matter for compliance and submission of the Report, as above, on 01.06.2020.
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