Thread by @LiveLawIndia

#SupremeCourt to hear plea challenging Delhi High's order which allowed bike-taxi aggregators Rapido and Uber to operate bike-taxis without aggregator licenses till a final policy regarding it is notified

On the last occasion the Supreme Court sought the Centre’s view on allowing bike-taxi aggregators in Delhi

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Sr. Adv. NK Kaul for Uber: Last date has directed the Central Govt for their stand. We had relied on notification to say that two wheelers can operate. In Delhi till date no scheme has been formulated based on Centre’s notification for registration of two wheelers...

Kaul: ...There is no prohibition under the Motor Vehicles Act.

Kaul: Only 25cc two wheeler is excluded. Today our submission is that the Govt of India comes up with two notifications.

J. Aniruddha Bose: Can it override a statute.

Kaul: There is nothing like that in the statute.

Sr. Adv. Manish Vashisht for the Delhi Govt, petitioner: They are concealing two facts...

Kaul:They suddenly come saying we are banning.

J.Bose:Mr.Jain what is your stand?

ASG Sanjay Jain for Union Govt:Our stand is that it is contained in the guidelines. Otherwise it is a state subject, but there is a relevant guideline in this respect. Kindly see the guideline.

Kaul: As an aggregator I am not permitting anyone. I am just bringing two people together...My writ is pending and all that the Delhi Govt says that the Delhi Govt formulate guidelines, but in the meanwhile....

J. Bose: We will stay the operation of the order (HC order). The Delhi Govt has said they will come up with a policy in a month’s time.

Kaul: I also have an Article 19 right. The Central Govt issues a notification saying these vehicles can be used, two wheelers. The guidelines is not placed before your lordships.

J. Bose: We do not agree with you.

J. Bose: Without permit you cannot ply.

Kaul: Even the Bombay HC had said that get registered under the Central guidelines till the time Maharashtra Govt comes with a framework.

Kaul: The State Govt. (Delhi Govt) does not have a policy. A person filed PIL in Bombay HC that they are not registered with Central Govt.

Kaul: Bombay HC said register with Central guidelines till Maharashtra Govt. comes up with guidelines. Uber approached the Supreme Court. The Supreme Court said we are not interfering with the order....

J. Bose: Was this (Supreme Court) order for two wheelers?

Kaul: It was for all.

J . Bose: Did the Bombay HC examine the specific case of two wheelers?

Kaul: It was for all...

Kaul:Kindly have the impugned order for a minute...So all that they said was that the Delhi Govt is in the process of drafting a policy. In the meantime to say that I cannot rely on the Central Govt notification...

Kaul: The Central Govt.permits them to run.Let the HC deal with it in an expedited manner.

J. Bose: Mr. Vashisht, what do you have yo say.

Vashisht (for Delhi Govt): In the Bombay HC matter, this Court directed them to register under Section 93. What they are doing now before the Delhi HC is challenging Section 93.

J. Bose: We will rise and come back in 10 minutes.

The Bench assembles.

Sr Adv. Siddharth Bhatnagar for Rapido: In Maharashtra case, the RTO Pune had rejected my license under guidelines. In Delhi, the license has not been rejected. They have passed no order on my license. I had applied under Central Govt notification.

J. Bose: How do you come out of S. 66?

Bhatnagar: Two wheelers can also be transportation vehicle.

J. Bose: License is at two stages, by owner and aggregators. The permit is absence at both the stages in this case. How can you override the statute which mandates the same?

J. Rajesh Bindal: Can you use a vehicle which is not registered as a transport vehicle?

Bhatnagar:...There is the Central Govt. guidelines.

J. Bose: But it is only a guideline....not statute.

Bhatnagar: From 2020 etc onwards we applied for license. State cannot say that they will not decide on license.

J.Bose: We will record what the State is saying that they will come up with the draft now.

Vashist: Until and unless they have a license in their hand they cannot run their business. In the Maharashtra matter, the Supreme Court had said that kindly re-apply, let them wait for the policy and let the Govt decide.

Vashist: Kindly see in that judgment this Hon’ble Court had said, no person can continue as an aggregator without a license. We are relying on this observation here.

Vashist: We have issued notices to them that put your house in order. We will eventually publish the final draft of the policy. By 31st July we will come up with the policy. My statement may be recorded. The policy has already been drafted.

J. Bose: Let us hear Mr. Jain (ASG) now.

ASG: The Central Govt guidelines have been issued to facilitate the State Government because it is a State subject. License is of course the sine qua non. No doubt about that. Kindly see the definition of license.

ASG: These aggregators have to have the licenses. But there are other aspects where the entities are correct...

J. Bose: At this stage we are only on the issue of license.

ASG: License is necessary, but two wheelers are covered.

J. Bose: Two wheelers can be transport vehicle but can it be permitted without registration?

ASG: S. 93 license is a regime in itself. There mayn’t be any need to go under S. 66, which is for transport vehicles.

J. Bindal: Can the guidelines override the statute?

ASG: Certainly not.

J. Bose: But can it be so that once you have the aggregator license unregistered vehicle can be permitted.

ASG: vehicles has to be registered....

J. Bose: You (Uber) must be aggregating 4 wheelers?

Kaul: For four wheelers Delhi Govt has a policy to register as commercial vehicle.

J. Bose: As an aggregator?

Kaul: Not as an aggregator because there is no policy of the Govt.

ASG: It would come under S.93 license, not S. 66.

J. Bose: Then owner of a private vehicle can also operation as a public vehicles.

Kaul: Today your lordships are dealing with interim order. To interfere with the same something glaring has to be point out...we are not some illegal operators we are under the statutory scheme and the Central Govt notification.

Kaul: ...it is a fit case for your lordships to ask for an expedited hearing...If your lordships ban this today then where do we go.

J. Bose: Let us dictate the order.

Vashist: The interim orders have been passed without any reasons. There is non-application of mind.

Order: Leave granted. The appellant is the Govt of NCT of Delhi and they assail an interim order passed by the Delhi HC on 26th May, 2023 in both the appeals. The appeal in which the respondent writ petitioner is one Roppen Transportation Pvt. Ltd. the impugned order reads “..”.

In the other appeal the respondent writ petitioner is one Uber India Pet Ltd. and the order of the Division Bench stipulates, “...”.

On 19th Feb, 2023, the appellant had issued a public notice, which in effect, prohibited use of two wheelers by the aggregators...

The respondent writ petitioners approached the Delhi HC invoking writ jurisdiction, wherein aforesaid orders were passed. There was subsequently, a show cause notice issued to the aggregators on 21st Feb, 2023 contemplating action against them.

Main argument on behalf of the NCT Delhi has been that the two wheelers are being utilised by aggregators, the writ petitioners, without proper license or permit and it is for that reason the public notice has been issued

The requirement for an aggregator to obtain license is contained in S. 93 of the MV Act and this provision reads “...”. The term aggregator itself is defined in S. 2(1)(A) to mean a digital intermediary or marketplace to connect with a driver for the purpose of transportation.

Delhi Govt is in the process of drafting a policy...until such policy is formulated operating a two wheeler vehicle would be prohibited.

Mr Kaul appeared for Uber, Mr. Bhatnagar and Mr Bose argued on behalf of Roppen. The main grievance spelt out by the respondent writ petitioners is that in spite of the central Govt’s policy formulated in the year 2020...

...the Delhi Govt has not yet come out with a proper policy and in such circumstances it was well within the jurisdiction of the Delhi HC to stay the operation of the notification and prevent coercive action against the operators.

Further submission is that large number of two wheeler owners are plying their respective vehicles and if the banning notification is revived at this stage their livelihood would be at stake.

In terms of S. 41(4) two wheelers have been permitted to be used as transport vehicle and no prejudice would be caused to the general public whose interest the Delhi Govt is to represent, if these vehicles are allowed to ply pending the policy of the Delhi Govt being in operation

....The respondent writ petitioners have raised the plea that the regulation of aggregators come under Entry 31 List I and hence the state cannot lay down any guidelines pertaining to operation of the aggregators.

We do not want to comment further on this issue as the High Court is in seisin of the matter.

ASG Sanjay Jain appeared for UoI and submitted operation of two wheeler also require license under S. 93 of the MV Act.

We had also posed question to Mr. Jain as to whether S. 66 permitted private owner of two wheeler to operate their vehicle through aggregation but on this count Mr. Jain wants to seek instructions...we make no comment on this provision as it is before the High Court...

Two judgments of this court were referred to on behalf of the respondent writ petitioners..Both these matters came to the SC from Bombay HC and the question of operation of aggregators without licence under S. 93 was under consideration.

We enquired if the subject of controversy was confined to operation of two wheelers and it was submitted that the subject dispute related to aggregators as a whole...

So far as Delhi is concerned we enquired if the four wheelers were permitted to operate without license under S. 93 and the answer was in the affirmative on the side of the respondent writ petitioners.

In non of the two judgments relied upon, it has been held that the aggregators can continue without a license under S. 93 of the MV Act.

...In the case of Uber an interim order of this court which operated since 21.04.2022 was directed to be extended... in order to enable operators to apply for license.

So far as present proceedings are concerned the distinguishing feature are that there is a specific public notice prohibiting operation of two wheelers under the aggregation system for passenger and no prohibition has been imposed on four wheeler vehicle.

In this case the prohibition order came on 19.02.2023 and the interim order was passed on 26.05.2023. Thus the operators where under prohibition till 25.05.2023.

The factual situation of the present case does not fit with the two SLP orders from the Bombay HC justifying permitting the aggregators to continue with their 2 wheeler operation without license under S. 93.

Moreover, on behalf of Delhi Govt Mr. Manish Vashisht assisted by Mr. Sameer Vashisht has submitted that the policy would be in place and the licensing regime would be operational within 31st July, 2023.

On notification of the policy each application should be dealt in a time-bound manner.

Under these circumstances in our opinion, an interim order staying whole-scale operation of a statutory regime till the finalisation of policy was unwarranted and we stay both the impugned orders passed by the Delhi HC.

The parties are given liberty to apply before the HC for early hearing of the writ petitions...

Kaul: Let the observation on Entry 31 v. Entry 35 not come. It is a serious argument. It would prejudice....

J. Bose: Alright, we will delete it.