Judgment & Order(Oral):

1. Heard Mr. PK Roychoudhury, the learned Senior Counsel assisted by Mr. R Sarma, the learned counsel appearing on behalf of the petitioners in WP(C)No.1430/2023 and Mr. AR Bhuyan, the learned Senior Counsel assisted by Mr. S Laskar, the learned counsel appearing on behalf of the petitioners in WP(C)No.1648/2023. Also heard Mr. S Bora, the learned Standing Counsel, who appears on behalf of the Guwahati Municipal Corporation (for short, ‘the GMC’) and Ms. MD Bora, the learned Standing Counsel, who appears on behalf of the Transport Department, Govt. of Assam.

2. The petitioners in both the writ petitions are aggrieved by the actions on the part of the Commissioner, GMC in issuance of an order dated 28.12.2022, whereby directions were issued that the Rickshaw Retrofitted with Electrical Motor should remove the motors within 7(seven) days from the date of the order failing which appropriate action would be taken.

3. A question arises in the instant proceedings as to whether the GMC has the power to issue such a direction vide the order dated 28.12.2022.

4. It is the case of the petitioners that these specialized Rickshaws which are Retrofitted with Electric Motors are actually known as the Dipbahan Tricycle Rickshaws and would come within the ambit of Rule 2 (u) of the Central Motor Vehicle Rules, 1989 (for short, the Rules of 1989). However, it is the specific stand of the Transport Department that these specialized Rickshaws Retrofitted with Electric Motors would not come within the ambit of Motor Vehicle inasmuch as, it does not fit into the definition of e-Rickshaw as defined under Rule 2(cb) of the Rules of 1989 or Battery Operated Vehicle as defined under Rule 2(u) of the Rules of 1989.

5. This Court also has taken note of the stand of the GMC wherein it is mentioned that the impugned order was passed on the ground that the said specialized Rickshaws are unsafe for commuters and in order to effect compliance to Rule 126 of the Rules of 1989.

6. This Court has heard Mr. S Bora, the learned Standing Counsel of GMC who submits that power of the Commissioner GMC to issue the impugned order dated 28.12.2022 is derived from the ‘Guwahati Municipal Corporation (Licensing of Rickshaws and Rickshaw Pullers) Bye-Laws 1976’ which are made in terms with Section 167 of the Guwahati Municipal Corporation Act, 1971 (for short, the ‘Act of 1971’).

7. Taking into account the above submissions, this Court finds it relevant to take note of Section 167 of the Act of 1971 which is reproduced hereinunder:

                   “167. Tax on certain vehicles, boats and animals.-(1) Except as hereinafter provided, a tax rates not exceeding those specified in the First Schedule shall be levied on vehicles, boats and animals of the description specified in the Schedule, when kept for use in the city for the conveyance of passengers or goods in the case of vehicles and boats and for riding, racing, draught or burden, in case of animals.

                   (2) The Corporation may, by notification in the Official Gazette, from time to time, increase the rates of tax specified in the schedule, in relation to any animal, class of vehicle or boat.

                   Explanation.-A vehicle, boat or animal kept outside the limits of the city but regularly used within such limits shall be deemed to be kept in the city.”

8. A perusal of the above-quoted provisions would show that by virtue of Section 167 of the Act of 1971, a power is conferred upon the GMC to impose a tax on vehicles, boats and animals as specified in the First Schedule, when kept for use in the city for conveyance of passengers or goods in the case of vehicles and boats and for riding, racing, draught or burden, in the case of animals. Apart from that, the GMC has been empowered to increase the rates of tax specified in the schedule, in relation to any animal, class of vehicle or boat.

9. A further perusal of the First Schedule to the Act of 1971 only stipulates the rates of taxes leviable on vehicles, animals, and boats. There is no power which can be seen from a reading of Section 167 as well as the First Schedule, thereby empowering the GMC to regulate, except the power to impose tax.

10. This Court now finds it relevant to take note of Section 416 of the Act of 1961, which empowers the Corporation to make Bye-laws. Section 416(1)A stipulates the subjects in respect to which Bye-laws can be made in relation to taxation.

11. In exercise of the powers under Section 416, read with Section 167 and 417 of the Act of 1971, the Guwahati Municipal Corporation made the ‘Guwahati Municipal Corporation (Licensing of Rickshaws and Rickshaw Pullers) Bye-Laws 1976’. Bye-law 4 stipulates the conditions when a license for Rickshaw can be issued. Bye-law 15 also puts certain prohibitions upon the puller of the rickshaw. Neither in bye-law 4, nor in bye-law 15, there is any mention that a license would not be issued or the puller of the rickshaw shall not ply the rickshaw, if the rickshaw is retrofitted with an electric motor. The power which is reserved upon the Commissioner in terms with Bye-law 20 is to revoke or suspend the license do not envisage revocation or suspension of license on the ground that an electric motor was retrofitted to a rickshaw.

12. This Court also finds it relevant in the aforesaid backdrop to take note of the reason as to why the impugned order dated 28.12.2022 was passed by the Commissioner, GMC. It is surprising to note that the impugned order was passed by the Commissioner of GMC, thereby seeking compliance with Rule 126 of the Rules of 1989. In the opinion of this Court, for the purpose of effecting compliance of Rule 126 of the Rules of 1989, it solely rests upon the Transport Department of the Government of Assam and not the GMC authorities.

13. This Court also takes note of the submission made by Ms. MD Bora, the learned Standing Counsel appearing on behalf of the Transport Department that the Rickshaws Retrofitted with Electric Motor do not come within the ambit of a Motor Vehicle as per the definition of e-rickshaw as defined in Rule 2(cb) of the Rules of 1989, or Battery Operated Vehicle as defined in Rule 2(u) of the Rules of 1989.

14. It is the opinion of this Court that it is the Legislature or the Rule-making authority to take necessary steps with the changing times. Merely because of the fact that the Legislature or the Rule-making Authority have not included Rickshaw Retrofitted with Electric Motors within the definition of Motor Vehicle, the GMC authorities would not have the jurisdiction to pass the impugned order, thereby trying to regulate these Rickshaws Retrofitted with Electric Motors.

15. Accordingly, both the writ petitions stand disposed of with the following observations and directions:

                   (i). The impugned order dated 28.12.2022, issued by the Commissioner GMC, is set aside and quashed.

                   (ii). All Rickshaws which are plying within the city of Guwahati, including specialized Rickshaws Retrofitted with Electric Motors are liable to be taxed by the GMC authorities in terms with Section 167 of the Act of 1971. These specialized rickshaws have also to obtain license.

                   (iii). The observations and directions passed hereinabove shall not bar the GMC, while issuing the license or renewing the license, to look into the aspect of safety, if permissible with the frame work of the Act of 1971 and the Bye-laws framed thereunder.

                   (iv). The power to regulate has to be traced from the Act of 1971. At present Section 167 of the Act of 1971 only provides the power to tax which is completely different from the power to regulate.

                   (v). The Home and Political Department as well as the Transport Department of the Government of Assam would have the power to control and regulate if the Rickshaws Retrofitted with Electric Motors are found to be dangerous and unsafe.

(vi). There shall be no order as to costs.