Madras HC | C. Paulraj Vs. The Secretary | 01 July 2011

Court: Madras High Court (Madurai Bench)

Bench: MR.JUSTICE D.HARIPARANTHAMAN

Case No(s). W.P.(MD) No. 9795 of 2008 and  W.P.(MD) No. 11415 of 2008

Title C. Paulraj vs The Secretary 

Date of Common Judgement : 01 July 2011 

 

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01/07/2011
CORAM
THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN
W.P.(MD) NO.9795 of 2008
AND
W.P.(MD) NO.11415 of 2008
 

C.Paulraj                                                                   ...              Petitioner in both WPs'

   

 Vs.

W.P.(MD) NO.9795 OF 2008

1.The Secretary
   Ministry of Transport
   Chennai.
 
2.The Transport Commissioner
   Chennai - 600 005.
 
3.Regional Transport Officer
   Tirunelveli - 627 007.
 
4.Assistant Registering Authority
   Transport Department
   Valliyoor, Tirunelveli District - 627 117.             ...               Respondents

W.P.(MD) NO.11415 OF 2008

1.The Union of India
   by its Secretary
   Ministry of Transport, New Delhi.
 
2.The State of Tamil Nadu
   by its Secretary
   Department of Transport
   Fort St. George, Chennai - 600 009.
 
3.The Central Co-ordination Committee
   [Constituted under Persons with
    Disabilities (Equal Opportunities,
    Protection of Rights and Full
    Participation) Act, 1995]
    Office of Minister of Welfare, New Delhi.
 
4.The State Co-ordination Committee
   [Constituted under Persons with
    Disabilities (Equal Opportunities,
    Protection of Rights and Full
    Participation) Act, 1995]
    Office of Minister of Welfare
    Fort St.George, Chennai -  600 009.            ...               Respondents
 

 Prayer IN W.P.(MD) NO.9795 OF 2008

 Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus, to direct  the 1st and 2nd respondents to allow the 3rd and 4th respondents to treat the vehicle as an invalid carriage and to issue the permanent registration of the four wheeler bearing Chasis No.2721645 and Engine No.3967599 in favour of the petitioner.

 Prayer IN W.P.(MD) NO.11415 OF 2008

 Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus, to direct the respondents 3 and 4 to advise the respondent No.1 to appropriately enable the physically challenged person to alter the vehicles to suit the requirement of physically challenged person and register the same under the Motor Vehicles Act.

For Petitioner                 

in W.P.No.9795/  2008  ...            Mr.T.Lajapathi  Roy
in W.P.No.11415 / 2008 ...           Mr.T.Lajapathi  Roy
                                                     for Mr.Ramesh Gopinathan
 
For Respondents 1 - 4
in W.P.No.9795 / 2008
For Respondents 2 & 4
in W.P.No.11415 / 2008 ...           Mr.D.Muruganandam, Additional Govt. Pleader
 
For Respondents 1&3
in W.P.No.11415 / 2008 ...           Mr.P.Krishnasamy 
                                                     Senior Panel Counsel for Government of India
 

COMMON ORDER

The petitioner is a Farmer. He is a B.Com., graduate. While he was working on the installation of a motor pump-set in a well, he fell down and injured severely at the spinal cord resulting in paralytic condition of the lower half of his body from the hips downwards. He obtained driving licence for driving invalid carriages on 13.01.2000.

2. The petitioner purchased an auto-rickshaw with registration no.TN74-C-0630. He modified the same, so as to make it an invalid carriage that could be operated by him. That is, he fitted hand break instead of foot break, by using the services of a mechanic. The said modification was approved by the Assistant Registering Authority, Transport Department, Valliyoor, Tirunelveli District, the fourth respondent in W.P.(MD)No.9795 of 2008, on 06.12.1999 and  the same was recorded in the R.C. book. He was also exempted from payment of tax, as per G.O.Ms.No.3352, Home (Transport) Department, dated 29.12.1976, so long as the vehicle exclusively is used by him as a physically challenged person.

3. The petitioner sold the said auto-rickshaw and purchased a second hand Maruthi-800 CC Car with registration no.TN04-B-7688. He made alterations in the said Car so as to make it as an invalid carriage. That is, the clutch, break and accelerator were brought to hand operation instead of leg operation. The said modifications were also approved and recorded by the fourth respondent in W.P.(MD)No.9795 of 2008 in the R.C. book on 03.06.2002.

4. Thereafter, the petitioner purchased a new Marthi-800 CC Car on 25.06.2008, with Chassis No.2721645 and Engine No.3967599, and similar modifications were done in the new Car as was done in the earlier Car bearing registration no.TN04-B-7688, so as to make it as an invalid carriage. Thereafter, when he approached the third respondent in W.P.(MD) No.9795 of 2008 seeking permission for conversion of Motor Car into invalid carriage and to register the same under the description "invalid carriage", the third respondent issued a communication dated 16.07.2008 refusing to entertain his application on the ground that the Car that was sought to be registered as invalid carriage, is not an invalid carriage as defined under Section 2(18) of the Motor Vehicles Act, 1988. Further it was stated that the Motor Vehicles Act does not permit the conversion of a Car into an invalid carriage.

5. In these circumstances, the petitioner has filed the writ petition in W.P.(MD) No.9795 of 2008 seeking a direction to the respondents 1 and 2 to allow the third and fourth respondents to treat his vehicle viz., Maruthi-800 CC, bearing Chasis No.2721645 and Engine No.3967599 as "invalid carriage" and to issue permanent registration of the said vehicle in his favour.

6. The petitioner filed another writ petition in W.P.(MD) No.11415 of 2008 seeking a direction to the Central Co-ordination Committee and the State Co-ordination Committee, constituted under the  Persons with Disabilities (Equal Opportunities, Protection of Rights and Full     Participation) Act, 1995, to advise the Secretary, Ministry of Transport, Government of India to appropriately enable the physically challenged persons to alter the vehicles to suit their requirement and register the same under the Motor Vehicles Act, 1988.

7. In both the writ petitions, the respondents have not filed counter affidavit.

8. While the relief claimed in W.P.(MD) No.9795 of 2008 is relating to the petitioner, the relief claimed in W.P.(MD) No.11415 of 2008 is to benefit all the physically challenged persons, as they are facing difficulties in registering the vehicles as invalid carriage, on making modifications, so as to drive those vehicles.

9. The grievance of the petitioner is that the manufacturers have now stopped manufacturing the vehicles specially designed for disabled persons, due to economic considerations, which forced the  disabled persons to make alterations with the help of mechanics in the workshops to convert the vehicle as invalid carriage and the physically challenged persons are facing difficulties in registering those vehicles as invalid carriage. Without registering the vehicles as invalid carriage, they could not take those vehicles to ply on the roads and the mobility of the physically challenged persons would be severely affected. Further, the Government of India remedied the situation in so far as the two wheelers are concerned, by issuing a notification in No.RT- 11012/12/01/MVL, dated 23.07.2008, under Section 52 of the Act, for conversion of two wheelers as invalid carriage. According to him, the respondents 3 and 4 in W.P.(MD) No.11415 of 2008 shall take the issue in respect of the four wheelers also, with the first respondent Government of India, for the benefit of the disabled persons.

10. Heard the submissions made on either side.

11. The petitioner approached the third respondent in W.P.(MD) No.9795 of 2008 with representation dated 14.07.2008, to register his vehicle viz., Maruthi-800CC Car, bearing Chassis No.2721645 and Engine No.3967599, as "invalid carriage", with some modifications, but without changing the basic feature. The modifications were limited to the extent of bringing hand operation of clutch, break and accelerator instead of leg operation. The said modifications were done by a local mechanic in the workshop.

12. But the third respondent Regional Transport Officer, Tirunelveli, by a letter dated 16.07.2008 refused to register the same as invalid carriage, as it is not an invalid carriage as per Section 2(18) of the Motor Vehicles Act. The contents of the said letter dated 16.07.2008 of the third respondent Regional Transport Officer, Tirunelveli, is extracted hereunder:

"I invite your attention to your representation in the reference first cited.   

As per section 2(18) of the Central Motor Vehicle Act 1988 "invalid carriage" means a motor vehicle specially designed and constructed, and not merely adapted, for the use of person suffering some physical defect or disability, and used solely by or for such person.

In your representation you have sought permission to convert your Motor  Car into an invalid carriage. The alteration of car into invalid carriage is not allowed as per the amended MV Act. In view of the above provision of the act the request for alteration of motor car into invalid carriage cannot be allowed."

13. According to the third respondent, the Motor Vehicles Act does not permit conversion of Car into invalid carriage and as per Section 2(18) of the Motor Vehicles Act, 1988 "invalid carriage" means a motor vehicle specially designed and constructed, and not merely adapted, for the use of person suffering some physical defect or disability, and used solely by or for such person.

14. The petitioner has stated that he had no other option except to avail the service of a mechanic to make alterations in the Car to convert it into an invalid carriage, since the Maruthi company, which was manufacturing the special vehicles for disabled persons in the last decades, have now stopped the manufacture of such vehicles. It is also categorically averred by the petitioner that no company is manufacturing the specially designed vehicles for the disabled, both in two-wheeler and four wheeler sectors, for the past five years. The said fact is not disputed by the learned counsels appearing for the respondents.

15.At this juncture, it is relevant to note that Section 2(18) of the Motor Vehicles Act, 1988 was considered by a learned Judge of this Court in W.P.(MD) No.4482 of 2008  (decided on 16.05.2008) (R.RAMASAMY VS. THE SECRETARY, MINISTRY OF TRANSPORT, CHENNAI AND OTHERS) wherein the learned Judge has held that conversion made by a private mechanic, without changing the basic feature of the motor vehicle, can be registered as invalid carriage, by the registering authorities. The word "adapted" in Section 2(18) of the Motor Vehicles Act, 1988 was interpreted by this Court and is held that it means only "suitable" and it should not be understood that only a vehicle specially manufactured by the manufacturer could alone be registered as invalid carriage. At this juncture, it is relevant to extract paras 18.3  to 18.10 of the said judgment, which reads as under:

"18.3.As per Section 2(18) the expression "invalid carriage" means a motor vehicle specially designed and constructed, and not merely adapted, for the use of a person suffering some physical defect or disability, and used solely by or for such person. The expression "adapted" has not been defined in the statute. As per Concise Oxford Dictionary 10th Edition, the word "adapt" is a verb, which means "make suitable for a new use of purpose".

18.4.The expression "adapted" has been used in various definition clauses such as in Sections 2(14), 2(18), 2(22), 2(25), 2(26), 2(28), 2(29), 2(33), 2(35), 2(40) and 2(43). Meaning has to be ascribed to such expression keeping in view the context in which it has been used. Though ordinarily the word "adapted" can be considered as past tense of the verb "adapt", at times such expression "adapted" can be considered as adjectival. Understood in such a sense, the expression can mean "suitable".

18.5. In the context in which it has been used in Section 2(18) the word "adapted" means suitable. It becomes more clear when the preceding expression refers to "a motor vehicle specially designed and constructed, and not merely adapted".

18.6. In several decisions, such expression "adapted" has been understood to mean "suitable" or "suited".

18.7. In  AIR 1975 SC 17 (BOLANI ORES LTD. V. STATE OF ORISSA), it was observed:-

"19. While dealing with the English cases it must not be forgotten that the definition of "motor vehicle" in the Road Traffic Act imports the element of intention into the definition for ascertaining whether a vehicle is a motor vehicle. In Maddox v. Storer8 Lord Parker, C.J. was construing the word "adapted" when used disjunctively with "constructed." He observed:

"One can get illustration after illustration, on looking at the Act itself, where 'adapted', when used disjunctively with 'constructed' must mean a physical alteration, and, as it seems to me, other cases where the word 'adapted' alone is used and where it must be given the adjectival meaning of being fit and apt for the purpose."

But where the word "adapted" alone has been used such as in sub-paragraph (2) of paragraph 1 of the First Schedule to the Road Traffic Act, 1960, he was of the view that it was wholly inapt to mean "altered so as to make fit". He asked "How do you alter a motor-car so as to make it fit to carry not more than seven passengers"? It is clearly there standing on its own, susceptible only of meaning "fit and apt for the purpose."

                           ....                      

22. As usual references have been made to the Dictionaries but quite often it is not possible to hold a dictionary in one hand and the statute to be interpreted in the other for ascertaining the import and intent of the word or expression used by Legislature. The shade of meaning of a word, its different connotations and collocations which one finds in a dictionary does not relieve us of the responsibility of having to make the ultimate choice of selecting the right meaning. We choose that meaning which is most apt in the context, colour and diction in which the word is used. The use of a dictionary ad lib without an analysis of the entire Act, its purpose and its intent, for ascertaining the meaning in which the Legislature could have used the word or expression may not lead us to the right conclusion. With this caution before us for avoiding any of the aforesaid methods which might lead to a possible incongruity, we will examine the different facets to which our attention has been drawn.

23. The meaning of the word "adapted" in Section 2(18) of the Act is itself indicated in Entry 57 of List II of the Seventh Schedule to the Constitution, which confers a power on the State to tax vehicles whether propelled mechanically or not and uses the word "suitable" in relation to its use on the roads. The words "adapted for use" must therefore be construed as "suitable for use". At any rate, words "adapted for use" cannot be larger in their import by including vehicles which are not "suitable for use" on roads. In this sense, the words "is adapted" for use have the same connotation as "is suitable" or "is fit" for use on the roads. (emphasis added).

18.8. Similar meaning was attributed by the Supreme Court in AIR 1992 SC 1371 (M/S.CENTRAL COAL FIELDS LTD. V. STATE OF ORISSA AND OTHERS).

18.9. In (2004) 6 SCC 210 (GOVERNMENT OF A.P. AND ANOTHER V. ROAD ROLLERS OWNERS WELFARE ASSOCIATION AND OTHERS), the Supreme Court, while considering the question as to whether a road roller is a motor vehicle within the meaning of Section 2(28) of the Motor Vehicles Act, observed:

 "5.........Undoubtedly, a roadroller is meant for repairing roads. This itself shows that it is adapted for use on roads. A roadroller is not capable of being used off the road. Merely because its purpose is to repair roads does not mean that it is not suitable or not adapted for use on roads. We fail to understand from where the High Court concludes that the connotation of vehicle must mean a conveyance for carrying people or goods. The definition of motor vehicle does not so provide. Merely because a vehicle does not carry passengers or goods does not mean that it ceases to be a motor vehicle. So long as it is a vehicle, which is mechanically propelled, and is adapted for use on roads, it is a motor vehicle within the meaning of the Motor Vehicles Act, 1988."

 18.10. From the aforesaid decisions, it is apparent that the expression "adapted" has been used in different provisions of the Motor Vehicles Act which carries the meaning of "suitable" or "capable of being used" on the road. It is used as an "adjectival" expression rather than a verb."

16. In the said judgment, the learned Judge went into detail on the issue and held that after the Motor Vehicles Act, 1988 was amended by Act 27 of 2000, there is no prohibition for any person including physically challenged persons to convert the motor vehicles as invalid carriage, so long as the alterations made does not change the basic feature of the vehicle. The learned Judge also held that the change of system from leg operation to hand operation, in so far as the clutch, break and accelerator in Cars are concerned, the same would not cause a change in the basic feature of the vehicle. The said judgment attained finality, as no appeal was preferred against the same, and the same was also not disputed by the learned counsels appearing for the respondents. In this regard, I feel it appropriate to extract para 10 of the said judgment, as under:

"10.The provisions contained in Section 52, as they stand now, do not contemplate any specific prior permission for making any alteration, save and except what is contemplated in the present Section 52(2). Moreover, Section 52(1) as it stands now contemplates that the owner of a motor vehicle should not alter the vehicle in such a manner that the particulars of the alteration would be at variance with the particulars originally specified by the Manufacturer. Where the change in the structure of the vehicle does not have the effect of changing the basic features of the vehicle, it does not come within the prohibition contemplated in Section 52(1). The above becomes clear if reference is made to the Explanation, which lays down that for the purpose of Section 52 "alteration" means a change in the structure of a vehicle which results in a change in its basic feature."

17.In view of the categorical pronouncement of this Court in the aforesaid judgment, in my view, the prayer as sought for in the writ petition in W.P.(MD) No.9795 of 2008 has to be allowed.

18.In so far as the writ petition in W.P.(MD) No.11415 of 2008 is concerned, though the prayer is for alteration of vehicles to suit the requirement of physically challenged persons seeking statutory recognition of alteration of vehicles for registering the same as "invalid carriages", it is submitted that so far as two - wheelers are concerned, the Government of India has already issued a notification in No.RT-11012/12/01/MVL, dated 23.07.2008 under Section 52 of the Motor Vehicles Act, taking into account the non- availability of invalid carriages in the market.

19.The petitioner has categorically pleaded that now both the three wheelers and four wheelers are not available in the market, as it is not economically viable for the manufacturers to manufacture and market them for the physically challenged persons.

20.The object of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 is to give effect to the proclamation on the full participation and equality of people with disabilities in the Asian and Pacific Region. If the mobility of the physically challenged persons are curtailed, that would result in perpetuating the inequality and the object of the Act could be defeated. One of the objects of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 is to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities. That is, the State should make available the invalid carriages in the market. Till such time, the State should permit the physically disabled persons to convert their vehicles into invalid carriage, as otherwise, the rehabilitation of the persons with disabilities could never happen.

21.Likewise, the other objects of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 are to create barrier free environment; to remove any discrimination in the sharing of development benefits; to counteract any situation of the abuse and the exploitation; to lay down strategies for comprehensive development of programmes and services and equalisation of opportunities and to make special provision for the integration of persons with disabilities into the social main stream.

22.In my view, until the manufacturers are manufacturing the specially designed vehicles for the physically disabled persons, it is difficult to achieve the aforesaid objects of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Atleast, the physically challenged persons shall be permitted to convert the vehicle as "invalid carriage" as that could enable them to drive those vehicles, without changing the basic feature and the same is permissible under Section 52 of the Motor Vehicles Act and has been approved by this Court in the judgment dated 16.05.2005 passed in W.P.(MD) No.4482 of 2008, referred to above.

23.Furthermore, the respondents 3 and 4 in W.P.(MD) No.11415 of 2008 are statutory bodies constituted under Sections 3 and 13 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Sections 8 and 18 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 deals with the functions of the Central Co-ordination Committee and State Co-ordination Committee, which reads as follows:

"8.Functions of the Central Co-ordination Committee. -(1) Subject to the provisions of this Act, the function of the Central Coordination Committee shall be to serve as the national focal point on disability matters and facilitate the continuous evolution of a comprehensive policy towards solving the problems faced by persons with disabilities.

(2) In particular and without prejudice to the generality of the foregoing, the Central Coordination Committee may perform all or any of the following functions, namely:-

(a) review and coordinate the activities of all the Departments of Government and other Governmental and non-Governmental Organizations which are dealing with matters relating to persons with disabilities;

(b) develop a national policy to address issues faced by, persons with disabilities;

(c) advise the Central Government on the formulation of policies, programmes, legislation and projects with respect to disability;

(d) take up the cause of persons with disabilities with the concerned authorities and the international organizations with a view, to provide for schemes and projects for the disabled in the national plans and other programmes and policies evolved by the international agencies;

(e) review in consultation with the donor agencies their funding policies from the perspective of their impact on persons with disabilities;

(f) take such other steps to ensure barrier-free environment in public places, work-places, public utilities, schools and other institutions;

(g) monitor and evaluate the impact of policies and programmes designed for achieving equality and full participation of persons with disabilities;

(h) to perform such other functions as may be prescribed by the Central Government.

18.Functions of the State Co-ordination Committee. - (1) Subject to the provisions of this Act, the function of the State Co-ordination Committee shall be to serve as the state focal point on disability matters and facilitate the continuous evolution of a comprehensive policy towards solving the problems faced by persons with disabilities.

(2) In particular and without prejudice to the generality of the foregoing function the State Coordination Committee may, within the State perform all or any of the following functions, namely:-

(a) review and coordinate the activities of all the Departments of Government and other Governmental and Non-Governmental Organizations which are dealing with matters relating to persons with disabilities.,

(b) develop a State policy to address issues faced by persons with disabilities;

(c) advise the State Government on the formulation of policies, Programmes, legislation and projects with respect to disability;

(d) review, in consultation with the donor agencies, their funding from the perspective of their impact on persons with disabilities;

(e) take such other steps to ensure barrier-free environment in public places, work places, public utilities, schools and other institutions;

(f) monitor and evaluate the impact of policies and programmes designed for achieving equality and full participation of persons with disabilities;

(g) to perform such other functions as may be prescribed by the State Government.

 24.In the result,

 (i) the third respondent in W.P.(MD) No.9795 of 2008 is directed to treat the petitioner's vehicle Maruthi-800 CC Car bearing Chassis No.2721645 and Engine No.3967599 as an invalid carriage and issue permanent registration in favour of the petitioner, in the light of the judgment of this Court dated 16.05.2008 in W.P.(MD) No.4482 of 2008, within a period of four weeks from the date of receipt of a copy of this order; and

(ii) in accordance with Sections 8 and 18 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the respondents 3 and 4 in W.P.(MD) No.11415 of 2008 are directed to consider the issue relating to conversion of vehicles into invalid carriage and advise suitably the first respondent - Government of India, to appropriately enable the physically challenged persons to alter the three wheeler and four wheeler vehicles also to suit their requirements and register the same under the Motor Vehicles Act, as expeditiously as possible.

 25.Both the writ petitions are disposed of with the aforesaid observations and directions. No costs.

 

To,

1.The Secretary Ministry of Transport Chennai.

2.The Transport Commissioner Chennai - 600 005.

3.Regional Transport Officer Tirunelveli - 627 007.

4.Assistant Registering Authority Transport Department Valliyoor, Tirunelveli District - 627 117.

5.The Secretary to Government Ministry of Transport Government of India New Delhi

6.The Secretary to Government Government of Tamil Nadu Department of Transport Fort St. George, Chennai - 600 009

7.The Central Co-ordination Committee [Constituted under Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995] Office of Minister of Welfare New Delhi.

8.The State Co-ordination Committee [Constituted under Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995] Office of Minister of Welfare Fort St.George, Chennai - 600 009.

 

 

 

 

 

Madras HC | WP No. 23379 of 2007 | LK Venkat & Anr. Vs. Min. of Civil Aviation & Others | 30 June 2008

Dear Friends, 

We often see the impact of Cases indirectly. Of late we have been seeing some enormous amount of activity in the DGCA and Ministry of Civil Aviation and their engaging very constructively with the Disability Sector in bringing about a Civil Aviation Requirement on carriage of People with Disability. 

In this regard, I refer to a case filed by Mr. L.K. Venkat & Rajiv Rajan against the Ministry of Civil Aviation, Air Sahara and Jet Airways etc. on the issue of lack of provisions for dignified flying for the disabled. The ministry drew flake for some time but this case surely was one of the factor in pushing the CAR guidelines more quickly from the tables of Ministry of Civil Aviation.   Finaly the HC hs delivered its judgement on Rajiv Rajan's Case against Min. of Civil Aviation. 

I am appending the judgement (courtesy Disability Legislation Unit-South) for your information and comments. 

In the High Court of Judicature at Madras 

Dated: 30-06-08 

Bench/ Coram: Mr. Justice P.K.MISRA And  Mr. Justice M.SATHYANARAYANAN 

 

Writ Petition No. 23379 of 2007 

IN RE:

 1.    Mr. L.K.Venkat 

 2.    Rajiv Rajan                                             ..Petitioners 

  

Versus 

1. The Ministry of Civil Aviation Chennai Airport, Mennambakkam, Chennai. 
2. The Secretary to Government Ministry of Civil Aviation, Rajiv Gandhi Bhavan, Safdarjung Airport, New Delhi. 
3. Air Sahara Airlines, Kamarajar Domestic Terminal, No.1, Link Building, Trisulam, Meenambakkam, Chennai-600 022 
4. Chief Executive Air Sahara (now known as Jet Lite) S.M.Centre, Andheri Koria Road Andheri (East), Mumbai-400 059 
5. Chief Executive Officer, Jet Airways (India) Ltd, S.M.Centrem Andheri Koria Road Andheri (East), Mumbai-400 059* 
6. Director General of Civil Aviation Opposite to safdurjung Airport New Delhi 
7. Chief Commissioner for Disablilities, Govt. of India, Sarojini House, No.6, Bhagawandoss Road, New Delhi-110 001 

(Cause title amended as per order dt.13.2.2008 in M.P.No.1 of 2007 in w.p.23379 of 2007) 

                                                                            …Respondents 

Writ Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Mandamus as stated therein. 

For Petitioners ….. Mr. P.B.Suresh Babu for Petitioners. 

For Respondents …. Mr. P.Wilson, Asst. Solicitor General for R1, R2,R6 & R7. 

M/S Guptha & Ravi for R3 to R5. 

 (Order of the Court was made by M.SATHYANARAYANAN, J) 

 The writ petition is filed in public interest for the issuance of writ of mandamus directing the respondents 1 to 3 to strictly implement the provisions of the persons with Disabilities (Equal Opportunities, Protection and Full Participation) Act, 1995 (in short “the Act”).  Thereafter M.P.No1 of 2007 was filed to implead the second petitioner and respondents 4 to 7, it was ordered on 13.2.2008 and accordingly, second petitioner and respondents 4 to 7 came to be impleaded as parties to this writ petition. 

 2. The first petitioner is a physically challenged person and he is a Postgraduate degree holder in Master of Arts and also did graduation in Law. The petitioner is doing social services in the name of Makkal Thalaivar Iyya Moopanar Peravai by conducting Blood Donation Camps, Eye Camps, Aids Awareness Programmes and other social services especially in rural areas of all over Tamil Nadu. 

 3. The first petitioner through newspaper reports came to know that the third respondent refused to board to board the second petitioner who is similarly affected buy a Polio Syndrome like the petitioner, on account of the fact that he is a physically challenged person. The second petitioner approached the third respondent to find out the reason why he was not allowed to board the aircraft and he was informed that unless he obtained fitness certificate from a doctor and accompanied by a healthy person to assist him during air travel, he will not be allowed to board aircraft. 

 4. According to the petitioner, the attitude of the third respondent is in violation of Article 14 of the Constitution of India and also clear contravention to the above said Act. The petitioner also sent a notice through his lawyer on 23.06.2007 calling upon the respondents to implement the provisions of the above said Act and he was not favoured with any response. Therefore, the petitioner has filed this writ petition. 

 5. Mr. P.B.Suresh Babu, learned counsel appearing for the petitioners had made his submissions based on the averments made in the affidavit filed in support of the writ petition. The learned counsel for the petitioners also filed a memorandum in reply to the counter affidavit filed by the respondents 1 to 4. It is submitted by the learned counsel appearing for the petitioners that there were similar incidents pertaining to aircraft Sahara and Jet Airways and complaints have been lodged with Chief Commissioner, Disabilities and the said complaints are pending adjudication. It is further submitted by the learned counsel for the petitioner that persons with disabilities are facing discrimination and degrading treatment wherever they go., The rights of the disabled persons was first declared in U.N. Declaration on the rights of persons with disabilities in the plenary meeting held on 19.12.1975 and the said declaration is yet to be given full effect. 

 6. It is also submitted by the learned counsel appearing for the petitioner that the provisions of the Aircraft Act 1934 and the Indian Aircraft Rules 1937 have to be reviewed in the light of the Constitution of India and the various commitments with the Government of India as made in the International Forums. In spite of the existing law, the facts would now disclose that the degrading treatment shown by the airliners are give recurrent and had been in different forms. Therefore, the writ petitioner has prayed for a declaration that the persons with disabilities constitute a separate class by themselves distinct from the medical ill or temporarily disabled persons and for a direction to review the Legislation and Rules relating to Civil Aviation and the lines of this understandings and also for the other consequential reliefs. 

 7. The respondents 1 and 2 had filed counter affidavit. It is stated in the counter that as per Rule 24 A of Aircraft Rules 1937, the persons suffering from any mental disorder are prevented to be carried on board of the aircraft and it is subject to the provision which is as follows:- “(a) has not taken or used any alcoholic drink or preparation within 12 hours of the commencement of the flight; (b) is kept under proper sedative; if in a state of excitement, during the flight and stops enroute; and (c) is accompanied by an attendant, provided that in case he has been in a state of excitement requiring sedation within the 2 weeks preceding the date of commencement of the flight, he shall be accompanied by a registered medical practitioner and adequate escort who shall individually and collectively be responsible for ensuring that no alcoholic drink or preparation is taken by the person in their charge and that such person is kept suitable sedated during the flight and shops en-route.” It is further state in the counter that the said rule which allows disabled person to travel in an aircraft and the disabilities Act 1995, is already implemented in the Civil Aviation Sector and no discrimination is made against any disabled person. The Airport and aircraft have suitably been designed to have easy access to Airport and aircraft for the benefit of physically challenged persons. The Civil Aviation Requirement is being suitable amended in consonance with the Persons with Disabilities (Equal Opportunities Act) and necessary directions are contemplated to be issued to all the Airliners to facilitate the carriage of physically challenged passenger by air by virtue of the powers conferred under Rule 133-A of the Aircraft Rules, 1937. 

 8. During the course of arguments Mr. P.Wilson, learned Assistant Solicitor General has produced a circular dated 2.5.2008 issued by the office of the Director General of Civil Aviation, New Delhi, wherein the Civil Aviation requirements in respect of carriage by Air to persons with disability and or persons with reduced mobility came to be issued. The salient features of the said circular are as follows:-

 “4.2 The airlines shall formulate a detailed procedure for carriage of disable persons or persons with reduced mobility and publish the same on their website.  

4.6 Many persons with disabilities do not require constant assistance for their activities. Therefore, if the passenger declares independence in feeding, communication with reasonable accommodation, toileting and personal needs, the airlines shall not insist for the presence of a n escort. 

4.9. Persons with disabilities not holding any certificate shall also be provided necessary assistance as well as the aids such as wheel chairs, ambulifts etc. In such cases during ticketing / check-in the individuals’ degree of disability and his need for assistance may be confirmed. Airlines shall not refuse carriage in such cases. However, cost of such facilities may be borne by passengers requiring them. 

Medical Clearance:- 

 5.1: No Medical clearance or special forms shall be insisted from persons with disabilities or persons with reduced mobility who only require special assistance at the airport for assistance in embarking /disembarking and a reasonable accommodation in flight, who otherwise do not require any additional assistance. 

5.2: A medical clearance by the airline may be required only when the airline has received information that the passenger a) suffers from any disease, which is believed to be actively contagious and communicable: b) who, because of certain disease, or incapacitation may have or develop and adverse physical condition which could have an adverse effect during flight and on safety and emergency evacuation procedures: c) would require medical attention and / or special equipment to maintain their health during the flights; d) there exists a possibility of medical condition aggravated during or because of the flight; Note: Persons with specific disabilities should plan to have all required forms for assistance ready in advance, to avoid flight delays. Forms and information will be made available on each airline’s website. 

5.3: Any passenger having any of the conditions mentioned in 5.2(a) through 5.2(d) be subjected to prior clearance for air travel by the medial departments /advisors of the carrying airlines. In case the passenger has a connecting flight with another airline, this medical clearance should be accepted at the first point of check-in and the information transmitted by the first Airlines to the connecting airlines so that the passenger is not required to furnish the same again and again. 

5.4: Before refusing carriage of any such passengers, the airlines shall refer to their medical departments /advisors for advise/clarification in accordance with a procedure, which shall be documented by the airlines. For such clearance the airline may seek the necessary medical information from the passenger(s) concerned or their representatives. Any forms for such information to be provided to the passengers by the airline staff will be made available on the airline’s website. 

5.5: The airline shall enter for each person with disabilities or person with reduced mobility or incapacitated passenger the information sheet requiring special assistance. Notes:1 – The airline shall establish a procedure for expeditious clearance by their medical departments, where required, to avoid delays causing inconvenience to passengers. Airlines shall provide necessary forms and procedures on their web-sites and through their call-centers/ agencies to make the process simple. The passengers should pre=clear themselves with the airline in advance. Notes:2 - The airline shall ensure that at time of check in airline staff is alerted and shall verify that all needs required by such passenger in advance in the relevant forms have been made available. 

Notes:3 – The procedures involving medical clearance shall be documented and published in each airline’s web-sites.  

Boarding, Seating and Briefing:- 

7.1: Boarding:-

a) The presence of all categories of incapacitated passengers and persons with disabilities or reduced mobility with their escorts and any special arrangements made for them while on board, shall always be referred to the captain/senior cabin crew member.

b) Incapacitated passengers and persons with disabilities or reduced mobility and their escorts shall be offered pre-boarding facilities.

c) If passengers for any reason have to be offloaded, the highest possible priority for transportation shall be given to persons with disability or persons with reduced mobility, and to their escorts. 

9. The said circular also provides for complaint procedure. As per the said procedure, a disabled person or person with reduced mobility who considers that this regulation has been infringed may bring to the attention of the managing body of airlines, airport or other concerned authorities, as the case may be and on receipt of such a complaint, shall ensure speedy and proper redressal of these complaints. 

10. Mr. P.Wilson, learned Assistant Solicitor General of India has submitted that in view of the said circular which came to be issued with affect from 1.5.2008, the grievance expressed by the petitioners and persons similarly placed have been taken into account and appropriate remedial measures have been provided and hence nothing survives in the writ petition. 

11. Mr. Ravi, learned counsel appearing for the respondents 3 to 5 has drawn the attention of this court to the averments made in the counter affidavit filed by the third respondent. According to the learned counsel, when the second petitioner was brought to check-in counter the shift in-charge of the third respondent attended him and found that the passenger was not fit to travel by air and that nobody had accompanied him and that he was asked for a fitness certificate. However, he gave irrelevant answers and also later started shouting at the staff in an abnormal way. It is further submitted by the learned counsel appearing for the respondents 3 to 5 that the respondents 3 to 5 had fully complied with the provisions of Indian Aircraft Rules 1937 as well as IATA medical manual. It is further submitted by the learned counsel that the second petitioner had invoked the jurisdiction of the State Consumer Redressal Forum by filing C.C.NO.37 of 2007 claiming compensation and the same was dismissed for default. As respondents 3 to 5 had complied with the laws applicable to them, the learned counsel for the respondents 3 to 5 submits that the present writ petition lacks merits and is liable to the dismissed. 

12. We have considered the submissions made by the respective counsel appearing for the parties and also perused the affidavit filed in support of the writ petition, counter affidavits, reply to the counter affidavit filed by the parties and also the circular dated 2.5.2008 issued by the office of the Director General of Civil Aviation. 

13. A perusal of the circular dated 2.5.2008 issued by the Director General of Civil Aviation would reveal that positive steps have been taken to alleviate the grievances of physically challenged persons in right earnest by the Director General of Civil Aviation and we hope and trust that further progress will definitely be made by the concerned authorities to redress the day to day problems faced by the physically challenged persons while they travel by air. 

14. The second petitioner herein has filed a complaint before the State Consumer Disputes Redressal Forum, Chennai in C.C.No. 37 of 2007, which came to be dismissed for default after the filing of this writ petition. The second petitioner was under the bona fide belief that he can get all reliefs in this writ petition and hence, allowed the said complaint to be dismissed for default. The alleged agony undergone by the second petitioner on 18.06.2007 was seriously disputed by the third respondent in its counter affidavit and aggrieved by the same, originally the second petitioner had filed the above said complaint before the State Consumer Disputed Redressal Form, which came to be dismissed for default as the second petitioner felt that in view of his impleadment in the writ petition, he cannot prosecute the said complaint. 

15. The question as to whether such person would be entitled to receive compensation obviously depends upon many factual findings based on evidence and the High Court is ill-equipped to deal with those aspects. However, we feel that the second petitioner should not suffer on that account and in the interest of justice, we feel; that without any application, the complaint in C.C.No. 37 of 2007 which was dismissed for default, can be restored to file and decided on its own merits. 

 16. We heard the learned counsel appearing for the respondents 3 to 5, who very fairly submitted that such an order of restoration can be passed in this writ petition itself. Accordingly, C.C.No.37 of 2007 filed by the second petitioner before the State Consumer Disputes Redressal Forum, Chennai, which was dismissed for default, stands restored to its file and it can be disposed of on its own merits. 

17. The circular dated 2.5.2008, issued by the Director General of Civil Aviation is an effective step in a right earnest. We feel that more effective steps have to be taken to alleviate the grievance of persons who are physically challenged and we hop and trust that such steps will definitely be on the cards. The writ petition is disposed of on the above terms. In the circumstances, there will be no order s to costs.

 Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar Gr. 

 To 

1. The Ministry of Civil Aviation, Chennai Airport, Meenambakkam, Chennai. 

2. The Secretary to Government, Ministry of Civil Aviation, Rajiv Gandhi Bhavan, Safdarjung Airport, New Delhi. 

 3. Air Sahara Airlines, Kamarajar Domestic Terminal. No.1, Link Building, Trisulam, Meenambakkam,Chennai-600 022 

 4. Chief Executive, Air Sahara (now known as Jet Lite). S.M.Centre, Anhjeri Koria Road, Andheri (East), Mumbai – 400 059. 

 5. Chief Executive Officer, Jet Airways (India) Ltd., S.M.CentreAndheri Koria Road, Andheri (East), Mumbai-400 059. 

 6. Director General of Civil Aviation opposite to Safdurjung Airport, New Delhi. 

 7. Chief Commissioner for Disabilities , Govt. of India, Sarojini House, No.6, Bhagawandoss Road, New Delhi – 110 001. 

 1 cc To Mr. P.Wilson, Advacate, SR.33533. 

1 cc To Mr. Gupta & Ravi, Advocate, SR.33150 

1 cc To Mr. P.B.Suresh Babu, Advocate, SR. 33188. w.p.no.23379 of 2007 nsm(co) 

RVL 11.07.2008