IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28 -10-2009
CORAM:
THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN
W.P.Nos.35479, 36100, 36101, 36770 and 37377 of 2007 and 279, 732, 2259, 2447 and 5539 of 2008 and 12837 and 14540 of 2009,
M.P.Nos.1, 2, 2 ,2and 2 of 2007, 2, 2, 2, 2,3, 2, 3 and 2 of 2008 and 2 of 2009
W.P.No.35479/2007
1.Tamil Nadu Driving Schools
Owners Federation, a Society
Registered under the Tamil Nadu
Societies Registration Act,
(Registration No.559 of 2006),
12, GST Road, Pallavaram,
Chennai-600 043 represented by its
State Secretary, A.K.Jayaseelan
2.Mr.A.K.Jayaseelan .. Petitioners
vs.
1.State of Tamil Nadu represented by its
Secretary to Government,
Transport Department,
Fort St. George,
Chennai-600 009.
2.Special Commissioner and Transport
Commissioner, Transport Department,
Chepauk,
Chennai-600 005. .. Respondents.
This writ petition is filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorari, calling for the records relating to the Circular No.43/2007 issued by the second respondent in letter No.R.No.51018/H1/07 dated 31.10.2007 and quash the same.
For Petitioners : Mr.N.Gopalakrishnan, Mr.S.Ganesh, Mr.R.Natesan, Counsel and Mr.M.S.Krishnan and Mrs.Nalini Chidambaram, Senior Counsel For Respondents : Mr.P.S.Raman, Advocate General Mr.A.Arumugam, Spl. G.P. C O M M O N O R D E R
These writ petitions have been filed either by the Association of owners of Driving Schools or by the owners of Driving Schools, challenging a Circular issued by the Transport Commissioner on 31.10.2007, revising the guidelines for licensing and regulating driving schools or establishments imparting instruction in driving of motor vehicles.
2. I have heard Mr.N.Gopalakrishnan, Mr.S.Ganesh, Mr.R.Natesan, learned counsel appearing for some of the petitioners and Mr.M.S.Krishnan and Mrs.Nalini Chidambaram, learned Senior Counsel appearing for some of the writ petitioners and Mr.P.S.Raman, learned Advocate General, appearing for the respondents.
3. By the Circular dated 31.10.2007, bearing Circular No.43/2007, the Special Commissioner and Transport Commissioner, who is the second respondent herein, directed all the Licensing Authorities to take into account the matters enlisted in paragraph 3.1.1 to 3.1.48 thereunder while considering the applications for the grant of licences to establish driving schools. Aggrieved by some and not all of the matters incorporated therein, the petitioners have come up with these writ petitions. The conditions about which the petitioners are aggrieved, are as follows:-
“3.1.2 Building, Infrastructure and amenities
The premises of the schools, should have fire proof pucca building either owned by the licensee or is taken on lease or rent by him or is hired in his name for at least 5 years, with a minimum space of 1000 sq. ft., so as to have enough space for providing all the requirements stipulated below, subject to the condition that one of the measurements either lengthwise or breadthwise shall not be less than 20 feet and it shall be insisted upon in all the schools intending to impart driving training in ‘motor cycle’ and ‘light motor vehicles’. Such space can either be available wholly on the ground floor or in the ground floor and first floor, if the driving school has such an arrangement. Additionally a minimum space of 560 sq. ft., and 420 sq. ft., for a heavy passenger motor vehicle and heavy goods vehicle school respectively shall also be provided.
3.1.3 Space for Office Room
An office room of size 10′ x 10′ shall be provided for reception, maintaining records, keeping the collection of books on automobile engineering, mechanisms, traffic regulations, road safety and laws relating to motor vehicles and allied subjects.
3.1.4 Space for Lecture Hall
Minimum space for at least one lecture hall shall be of measurement 15′ x 10′ so as to provide suitable accommodation comprising two benches and two tables for every 10 candidates at a time. Additional tables and benches shall also be provided where the strength exceeds 10 students at a time.
3.1.5 Space for Demonstration Hall
Adequate Space measuring not less than 15′ x 10′ for demonstration of models (such as engine, gear box, brake shoe and drums, puncture kit with tyre lever, wheel brace, jack and tyre pressure gauge, spanners and a service chart depicting a detailed view of all the components of a motor vehicle etc., shall also be provided. The above models shall have to be placed on a work bench.
3.1.6 Space for Traffic Education Room
A room of a minimum size 15′ x 10′ for conducting traffic education for provision of road plan board, traffic signs chart, chart on automatic signals and signals given by traffic controllers where there are no automatic signals, etc., shall have to be provided.
3.1.7 Parking Area
Adequate parking area within the premises of the school to accommodate the vehicles in which instructions are imparted shall have to be provided as detailed below:-
(i) One Motor Cycle and one Light Motor Vehicle 350 Sq. Feet; and
(ii) An additional space at the rate 560 Sq. Feet for Heavy Passenger Motor Vehicle and 420 Sq. Feet for Heavy Goods Vehicle.
3.1.8 Basic Amenities
The school premises shall have to have all basic amenities such as drinking water, toilet facility, rest rooms etc.
3.1.10 Financial Resources
Solvency certificate to an amount of not less than Rs.3 lakh shall have to be produced.
3.1.11 Maintenance of Vehicles
Applicant/driving schools shall own a minimum of one vehicle of latest model (not older than 8 years at any point of time) in each category. The vehicles except motor cycle shall be fitted with dual control facility to enable the instructor to control or stop the vehicle in which training is imparted. The driving school vehicles used for imparting instructions to the candidates, on any account, shall not be used for other purposes and shall here to have a board prominently displaying the words “for drivers training” both in English and Tamil.
3.1.45 Age and Mechanical Condition
Every licensee shall maintain the vehicles used by him for imparting training to the candidates in a mechanically fit condition and at no point of time the age of such vehicle shall be more than 8 years from the date of its initial registration.
3.1.48 Ban on using public road
At present, generally the public roads are being utilized for imparting driving training by the driving schools. Instead of this, a suitable ground/area shall be identified and utilized for the same by the licensee considering the road safety aspect.”
4. Paragraph-8 of the said Circular contained an instruction to all the licensing authorities to direct the existing driving schools to have the facilities mentioned in paragraphs-3.1.1 to 3.1.48, within a period of six months from the date of issue of the Circular. Therefore the association of owners of existing driving schools, have come up with the present writ petitions.
5. At the outset, Mr.P.S.Raman, learned Advocate General, straightaway conceded that paragraphs 3.1.10 and 3.1.48 would not be enforced. Paragraph 3.1.10 imposes an obligation upon the driving schools to obtain solvency certificates for an amount of not less than Rs.3 lakhs. The learned Advocate General submitted that in respect of existing driving schools, such solvency certificates would not be insisted upon. Similarly, paragraph 3.1.48 prohibits the use of public roads for imparting training and the learned Advocate General fairly conceded that it would go against the very object of the circular to produce skillful drivers. Training in driving may not be complete unless the skill is tested on a public road. Moreover, this cannot be a condition precedent for the grant of a license. It is a condition, even if found necessary, cannot be enforced before the issue of a licence for establishing a driving school. It may be open to the respondents to stipulate that the initial stages of training should be imparted only in an open area/ ground. But the final stage of training or at least the testing of the driving skills of a person, may have to be on a public road. Therefore the learned Advocate General submitted that these paragraphs of the impugned circular would be suitably modified.
6. Therefore the area of dispute has now narrowed down to (i) the prescription regarding buildings, infrastructure and amenities and (ii) the age and maintenance of the vehicles used by these driving schools.
7. Mr.N.Gopalakrishnan, learned counsel for the petitioner contended— (a) that Section 12(1) of the Motor Vehicles Act, 1988, empowers only the Central Government to make rules for the purpose of licensing and regulating the schools imparting instruction in driving of motor vehicles and hence neither the State Government nor the Transport Commissioner has any power to issue directions in this regard; (b) that the Central Government has actually framed the Central Motor Vehicles Rules, 1989, Rule 24 of which deals with driving schools and the procedure for grant of licences and hence the State Government and the Transport Commissioner have no jurisdiction to issue a Circular such as the one impugned in this writ petition; and (c) that Rule 82(2) and Rule 88(2) of the Central Motor Vehicles Rules fix the age of a vehicle for which tourist permit and National Permit are granted respectively, and Rule 169A(5) of the Tamil Nadu Motor Vehicles Rules fixes the age of a vehicle used as Tourist Cab and hence the fixation of the age of the vehicle as 8 years under the impugned Circular is ultra vires the rules. The learned counsel for the petitioner relied upon an unreported decision of R.Jayasimha Babu, J., in M/s.Salem District Driving School Owner’s Association vs. The State Transport Authority {W.P.No.2162 of 1995 dated 15.2.1995}.
8. Mr.S.Ganesh, learned counsel for some of the petitioners contended that the power to frame rules regulating the grant of licences to driving schools is reserved only to the Central Government and that therefore the Transport Commissioner has no power to issue any direction without the authority of the law. He also contended that the reliance placed by the respondents in their counter affidavits, upon Section 68(3)(d) and 68(4) of the Motor Vehicles Act, 1988, to justify the impugned Circular, is ill-founded, since these provisions do not deal with driving schools. The learned counsel also drew my attention to Rules 24 to 32 of the Central Motor Vehicles Rules, 1989, and contended that the entire subject of licensing of driving schools is covered by the Central Rules. The learned counsel relied upon the decisions of the Supreme Court in Subhash vs. State of Maharashtra {1995 Supp (3) SCC 332}, Laxman Dundappa Dhamanekar vs. Management of Vishwa Bharata Seva Samiti {2001 (8) SCC 378} and Ashok Lanka vs. Rishi Dixit {AIR 2005 SC 2821}, in support of his contention that Rules cannot be annulled or modified or replaced by executive instructions. The learned counsel also relied upon the decision in Parameshwar Prasad vs. Union of India {2002 (1) SCC 145}, in support of his contention that it is only the authorities who are competent under the Rules, that are actually empowered to issue Circulars to fill up the gaps.
9. Mrs.Nalini Chidambaram, learned Senior Counsel for the petitioner contended that since Entry 35 in the concurrent list of the Seventh Schedule to the Constitution deals with the subject and also since the Parliament has enacted the Motor Vehicles Act, 1988, it is an occupied field. Therefore so long as the legislature of the State had not made any law, which has received the assent of the President, the impugned Circular issued by the Transport Commissioner would be unconstitutional. According to the learned Senior Counsel, Rule 24 of the Central Motor Vehicles Rules also occupies the field and hence neither the State nor the Transport Commissioner is competent to issue any directions of the kind issued under the impugned Circular.
10. Mr.M.S.Krishnan, learned Senior Counsel for the petitioner contended that the Motor Vehicles Act, 1988, is divided into several Chapters dealing with different subjects. Each Chapter contains separate provisions empowering either the Central Government or the State Government or both to make rules. For instance, Chapter II deals with licensing of motor vehicles. While Section 27 empowers the Central Government to make rules regarding the matters described in Clauses (a) to (q), Section 28 empowers the State Government to frame rules in respect of matters enlisted in Clauses (a) to (k) of sub-section (2) of Section 28. In Chapter III dealing with licensing of Conductors of stage carriages, the State Government alone is conferred with the power to frame rules under Section 38. In Chapter IV dealing with registration of vehicles, the Central Government is empowered under Section 64 and the State Government is empowered under Section 65 to make rules. Similarly Chapter VII and Chapter VIII empower the Central Government as well as the State Government to frame rules. But Chapter V, Chapter VI and Chapter XII contain provisions empowering the State Government alone to frame rules. The rule making power under Chapter IX and Chapter XI is confined only to the Central Government. Therefore, according to the learned Senior Counsel, it is the scheme of the Motor Vehicles Act, 1988 that in respect of matters which require uniformity of standards throughout the country, it is the Central Government which is empowered to frame rules. Since the issue of licensing of driving schools is a matter requiring uniformity, the Central Government alone, according to the learned Senior Counsel, has power to frame rules. The learned Senior Counsel also brought to my attention the provisions of Rule 24(3)(ii) of the Central Motor Vehicles Rules, 1989 as it stood before its amendment. It reads as follows:-
“24. (3)(ii) The premises where the school or establishment is proposed to be conducted is either owned by the applicant or is taken on lease by him or is hired in his name and it has adequate provision for a lecture hall, room for demonstration of models, administrative section, reception room and sanitary block besides adequate parking area for the vehicles meant to be used for imparting instructions in driving”
However, the said Rule was amended, after which it reads as follows:-
“24. (3)(ii) The premises where the school or establishment is proposed tobe conducted is either owned by the applicant or is taken on lease by him or is hired in his name and it has adequate provision for conducting lecture and demonstration of models besides adequate parking area for the vehicles meant to be used for imparting instructions in driving”
A comparison of the above rule, both before and after amendment, would show that the requirement to have adequate provision for a lecture hall, a room for demonstration, administrative section, reception room etc., were deleted. When these requirements have been deleted from the statutory rules, by way of amendment, it is not open to the Transport Commissioner, according to the learned Senior Counsel for the petitioner, to reintroduce the same by way of executive instructions. The learned Senior Counsel also relied upon Section 59 of the Act, which prescribes the age of the vehicle and contended that the fixation of age by the Transport Commissioner, amounted to overreaching the provisions of the Act. Contending that by executive instructions, statutory rules and provisions, cannot be supplanted, Mr.M.S.Krishnan, learned Senior Counsel for the petitioner cited the following decisions:-
(i) Mannalal Jain vs. State of Assam {AIR 1962 SC 386}.
(ii) The State of Maharashtra vs. Chandrakant Anant Kulkarni {AIR 1981 SC 1990}.
(iii) State of Madhya Pradesh vs. M/s.G.S.Dall and Flour Mills {1992 Supp (1) SCC 150}.
(iv) Kerala Financial Corporation vs. Commissioner of Income Tax {1994 (4) SCC 375}.
(v) K.Kuppuswamy and another vs. State of Tamil Nadu {1998 (8) SCC 469}.
(vi) Union of India vs. Charanjit S.Gill {2000 (5) SCC 742}.
(vii) Laxman Dundappa Dhamanekar vs. Management of Vishwa Bharata Seva Samiti {2001 (8) SCC 378}.
(viii) U.P.Raghavendra Acharya vs. State of Karnataka {2006 (9) SCC 630}.
11. In response to the above contentions, Mr.P.S.Raman, learned Advocate General contended that a licensing authority is defined under Section 2(20) of the Act and that he is vested with certain powers under the Act. Therefore any Circular issued for the purpose of laying down an objective criteria for licensing driving schools, cannot be construed as overriding the provisions of the Act or the Rules. The prescription in the Circular regarding the space required for locating the office of a driving school, is to improve the quality of training imparted. The fixation of the age of the vehicle as 8 years, according to the learned Advocate General, is for the purpose of ensuring that training is imparted in new generation vehicles. The learned Advocate General also relied upon two decisions of the Kerala High Court viz., (i) Krishnamoorthy vs. Transport Commissioner, decided on 10.7.2002 and (ii) Sebastian vs. State of Kerala, decided on 17.5.2005. The learned Advocate General also brought to my notice the fact that under Rule 426 of the Tamil Nadu Motor Vehicles Rules, 1989, the Transport Commissioner is nominated as the head of the Transport Department for the purpose of Section 213 of the Act and hence he is empowered to issue instructions.
12. I have carefully considered the rival submissions. All the submissions of the learned counsel and the learned Senior Counsel appearing for the petitioners revolve primarily around the competence and power of the Transport Commissioner to issue such a Circular, in the light of statutory provisions and the Rules. It is the core theme of the song of the petitioners that in the scheme of the Act, it is the Central Government which is empowered to frame rules in respect of these matters.
13. To see if the above contention is justified, let us now take a look at the relevant provisions. Section 12 of the Motor Vehicles Act, 1988 reads as follows:-
“12. Licensing and regulation of schools or establishments for imparting instruction in driving motor vehicles. – (1) The Central Government may make rules for the purpose of licensing and regulating, by the State Governments, schools or establishments (by whatever name called) for imparting instruction in driving of motor vehicles and matters connected therewith.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-
(a) licensing of such schools or establishments including grant, renewal and revocation of such licences;
(b) supervision of such schools or establishments;
(c) the form of application and the form of licence and the particulars to be contained therein;
(d) fee to be paid with the application for such licences;
(e) conditions subject to which such licences may be granted;
(f) appeals against the orders of refusal to grant or renew such licences and appeals against the orders revoking such licences;
(g) conditions subject to which a person may establish and maintain any such school or establishment for imparting instruction in driving of motor vehicles;
(h) nature, syllabus and duration of course or courses for efficient instruction in driving any motor vehicle;
(i) apparatus and equipments (including motor vehicles fitted with dual control) required for the purpose of imparting such instructions;
(j) suitability of the premises at which such schools or establishments may be established or maintained and facilities tobe provided therein;
(k) qualifications, both educational and professional (including experience), which a person imparting instruction in driving a motor vehicle shall possess;
(l) inspection of such schools and establishments (including the services rendered by them and the apparatus, equipments and motor vehicles maintained by them for imparting such instruction);
(m) maintenance of records by such schools or establishments;
(n) financial stability of such schools or establishments;
(o) the driving certificates, if any, to be issued by such schools or establishments and the form in which such certificates shall be issued and the requirements to be complied with for the purposes of issuing such certificates;
(p) such other matters as may be necessary to carry out the purposes of this section.”
14. Section 12 as well as Sections 27 and 28, as rightly contended by Mr.M.S.Krishnan, learned Senior Counsel, are in Chapter II of the Act, which deals with “Licensing of Drivers of Motor Vehicles”. Though Section 12(1) itself specifically empowers the Central Government to make rules for the purpose of licensing and regulating driving schools and Section 12 (2) enlists the matters in respect of which provision could be made in those rules, Section 27 also confers power upon the Central Government to frame rules with regard to the matters dealt with by Sections 3(2), 8(2), 8(3), 8(5), 9(2), 9(3), 10(1), 11(1), 15(1), 15(2), 18(1), 19(1), 24(2) and 26(1). Section 28(1) empowers the State Government to make rules, for the purpose of carrying into effect the provisions of Chapter II, in respect of matters other than those covered by Section 27.
15. The cumulative effect of Sections 12, 27 and 28 is that the power to frame rules with regard to the licensing and regulating of driving schools, vests only with the Central Government. To this extent, the contention of the petitioners is correct.
16. The power conferred by Section 12 has also been exercised by the Central Government, by issuing “The Central Motor Vehicles Rules, 1989”. The preamble to the said Rules, issued in G.S.R. 590(E) dated 2nd June 1989, makes it clear that those Rules were issued in exercise of the power conferred by Section 12, apart from the power conferred by other Sections. Therefore, the Central Government has exercised the rule making power conferred under Section 12.
17. Rules 24 to 32 in Chapter II of these Rules, deal with “Driving Schools and Establishments”. While Rule 24 deals with the licensing of driving schools in Form 11, the matters to be considered by the licensing authority while granting or renewing a licence and the procedure prescribed for the grant of licence, Rule 25 deals with duration of the licence and its renewal. Rule 26 deals with the issue of duplicate licence. Rule 27 specifies the general conditions to be observed by the holder of a licence. Rule 28 empowers the licensing authority to suspend or revoke the licence. Rule 29 provides for an appeal and Rule 30 prescribes the procedure for dealing with an appeal. Rule 31 contains the syllabus for imparting training and Rule 32 prescribes the fees to be charged.
18. There could be no quarrel with the proposition that no rule can be issued by the State Government and no Circular or executive instruction can be issued by any authority, which tends to override or overreach or be in conflict with any of the above Rules. In this background, now let us take a look at Rule 24 (3) and (4) of the Central Motor Vehicles Rules, 1989.
“(3) The licensing authority shall, when considering an application for the grant or renewal of a licence under this rule, have regard to the following matters, namely:-
(i) The applicant and the staff working under him are of good moral character and are qualified to give driving instructions.
(ii) The premises where the school or establishment is proposed to be conducted is either owned by the applicant or is taken on lease by him or is hired in his name and it has adequate provision for (conducting lecture and demonstration of models) besides adequate parking area for the vehicles meant to be used for imparting instructions in driving:
Provided that in respect of schools or establishments imparting instructions in driving of motor vehicles or matters connected therewith immediately before the commencement of these rules, the licensing authority may permit the conducting of instruction facilities in the same premises where the school or establishment is housed for a period of six months, notwithstanding the fact that the premises do not satisfy conditions laid down in this clause.
(iii) The financial resources of the proposed school or establishment are sufficient to provide for its continued maintenance.
(iv) The applicant owns and maintains a minimum of one motor vehicle each of the type in which instruction is imparted in the school or establishment.
(v) The vehicles are available exclusively for purposes of imparting instruction and all such vehicles, except motor cycles, are fitted with dual control facility to enable the instructor to control or stop the vehicle;
(vi) The applicant maintains the following apparatus, equipments and other requirements, namely:-
(a) a blackboard;
(b) a road plan board with necessary model signals and charts;
(c) traffic signs chart;
(d) chart on automatic signals and signals given by traffic controllers where there are no automatic signals;
(e) a service chart depicting a detailed view of all the components of a motor vehicle;
(f) engine gear box, brake shoe and drums (except where the applicant desires to impart instruction in the driving of motor cycles only);
(g) puncture kit with tyre lever, wheel brace, jack and tyre-pressure gauge;
(h) spanners (a set each of fix spanners, box spanners, pliers, screw drivers, screw spanners and hammer);
(i) driving instructions manual;
(j) benches and tables for trainees and work-bench;
(k) {* * *}
(l) {* * *}
(m) a collection of books on automobile mechanism, driving, road safety, traffic regulations, laws relating to motor vehicles and related subjects;
(n) a fully equipped first-aid box for use in emergency at the premises;
(vii) {* * *}
(viii) The applicant or any member of the member of the staff employed by him for imparting instructions possesses the following qualifications, namely:-
(a) a minimum educational qualification of a pass in the 10th Standard;
(b) a minimum driving experience of five years in addition to a certificate in a course in motor mechanics or any other higher qualification in mechanical engineering from an institution established by the Central or a State Government or from an institution recognised by the Board of Technical Education of a State Government;
(c) thorough knowledge of traffic signs specified in the Schedule to the Act and the regulations made under Section 118.
(d) ability to demonstrate and to explain the functions of different components, parts of the vehicles;
(e) adequate knowledge of English or the regional language of the region in which the school or establishment is situated:
Provided that any person who has served as an instructor for a period of not less than 5 years immediately before the commencement of these rules, is exempted from the requirements of this sub-clause.
(4) The licensing authority may, on receipt of an application under sub-clause (2) and after satisfying that the applicant has complied with the requirements of sub-rule (3), grant or renew a licence in Form 11.”
19. Rather than prescribing a set of full fledged norms or standards, Rule 24(3) merely lists out the matters to be taken into account by the licensing authority, while considering an application for the grant or renewal of a licence. In respect of certain matters, Rule 24(3) prescribes the minimum requirement. In respect of certain matters, the Rule gives only an indication of what may be required. In respect of many of the matters, the Rule confers a discretion upon the licensing authority to adopt such norms and standards, as would subserve the scheme of the Act and the Rules. For instance, Rule 24(3)(iv) mandates that the person applying for licence owns and maintains at least one vehicle, each of the type in which instruction is imparted. Rule 24(3)(v) mandates such vehicles to be fitted with dual control facility and such vehicles to be available exclusively for imparting training. Rule 24(3)(vi) gives a list of apparatus and equipments to be maintained. Rule 24(3)(viii) fixes the qualifications. No discretion is conferred upon the licensing authority to dilute any of these standards, which are specifically prescribed.
20. But in respect of matters covered by clauses (i), (ii) and (iii) of sub Rule (3) of Rule 24, an element of discretion is conferred upon the licensing authority. For instance, clause (i) requires the licensing authority to ensure that the applicant and the staff working under him are of good moral character and are qualified to give driving instructions. The Rule does not prescribe any standards of good moral character. Therefore, the determination of what constitutes good moral character, based upon socially accepted norms, is left to the discretion (and character) of the licensing authority. Similarly, clause (iii) of sub rule (3) requires the licensing authority to ensure that the financial resources of the applicant are sufficient to provide for its continued maintenance. No parameters are fixed under the Rule to determine the sufficiency or otherwise of the financial resources of an applicant. Therefore, the determination of the sufficiency of financial resources, is left by the rules to the discretion of the licensing authority. On the same lines, clause (ii) of sub rule (3) of Rule 24 requires the licensing authority to ensure that the premises where the driving school is proposed to be conducted, is either owned or taken on lease by the applicant and that it has adequate provision for conducting lecture and demonstration, besides parking area. While the requirement to own or have on lease, a premises, is indispensable and does not depend upon the discretionary power of the licensing authority, the question as to whether such premises has “adequate provision”, is left by Rule 24(3)(ii) to the discretion of the licensing authority.
21. Therefore, it is clear that Rule 24(3) fixes the broad frame, within which a licensing authority is to act. It prescribes very broad and essential standards in respect of certain matters and leaves the other matters to the discretion of the licensing authority. An elbow space is provided to the licensing authority, under Rule 24(3). In other words, Rule 24(3) does not provide a mere check list for a mechanical verification by the licensing authority. The licensing authority is not reduced by Rule 24(3) to a mere robot. In respect of matters for which standards are clearly fixed, he has no discretion. But in respect of other matters, the licensing authority has an element of discretion.
22.Once the scheme of Rule 24(3) is understood on the above lines, the fallacy of the contention of the petitioners that the Transport Commissioner has no power to prescribe any standards, would be clear. In exercise of the power conferred by Section 12 (1) and 12 (2), it was open to the Central Government to frame rules prescribing clear and rigid standards and norms. If the Central Government had done so, the area would have become an occupied field, into which, neither the State Government nor the Transport Commissioner would be able to encroach. If the Central Government had fixed clear standards and left nothing to the discretion of the licensing authority, then the licensing authority would have had no power to issue executive instructions or Circulars, overreaching or overriding the standards so fixed. However, the Central Government, as seen from the scheme of Rule 24(3), has not fixed all the norms and standards, but left some area unoccupied by the Rules, to enable the licensing authorities to fill them
up. If a licensing authority acts within the space so provided, he could not be taken to have overridden the provisions of the Act and the Rules.
23. A licensing authority is defined under Section 2(20) of the Act, to mean an authority empowered to issue licences under Chapter II or III, as the case may be. Section 28(2)(a) of the Act, empowers the State Government to make rules, which may, among other things, provide for “the appointment, the jurisdiction, control and functions of licensing authorities and other prescribed authorities”. In exercise of the power so conferred, the State Government had issued “The Tamil Nadu Motor Vehicles Rules, 1989”. Rule 4 of the said Rule names the Regional Transport Officer or the Additional Regional Transport Officer as the licensing authority for the issue of driving licences. The very same Officers are named as licensing authorities even for the issue of conductor licences under Rule 50 of the Tamil Nadu Rules. The “Explanation” under sub rule (2) of Rule 24 indicates that for the purpose of Rules 24 to 28 of the Central Motor Vehicles Rules, 1989, a licensing authority would mean an Officer not below the rank of Regional
Transport Officer of the Motor Vehicles Department established under Section 213.
24. Therefore, it is clear that the Regional Transport Officer of the area concerned, is the licensing authority, empowered under Rule 24(1) of the Central Rules to grant or renew a licence for running a driving school. These Regional Transport Officers are administratively subordinate to the Transport Commissioner, who is named under Rule 426 of the Tamil Nadu Motor Vehicles Rules 1989, as the head of the Transport Department, for the purpose of Section 213, Rule 426 of the Tamil Nadu Rules reads as follows:-
“426. Transport Department Officers. – For the purpose of Section 213, the Transport Commissioner shall be the Head of the Transport Department, the Joint Transport Commissioner, the Deputy Transport Commissioners and Secretary and Assistant Secretaries to the State Transport Authority, the Departmental Representative, the Statistical Officer, the Assistant Engineer (Motor Vehicles), the Senior Accounts Officer and Junior Accounts Officers, the Regional Transport Authorities and their Secretaries, the Regional Transport Officers, the Officers functioning as licensing and Registering Authorities, the Motor Vehicles Inspectors, Grade I and Grade II, Motor Vehicles Inspectors (Non-Technical), Personal Assistant to State Transport Authority and Personal Assistant to Regional Transport Officers and Superintendents and all other officers who may, from time to time be appointed for the purpose of the said section shall be officers of the Transport Department and shall exercise the powers and perform the duties assigned to them from time to time under the Act and the rules made and the notifications issued thereunder. They shall carry out the instruction and orders issued by the Transport Commissioner from time to time.”
25. Therefore a combined reading of Sections 12(2), 27, 28 and 213 of the Act, together with Rules 24(1), 24(2), the Explanation under Rule 24(2) and Rule 24(3) of the Central Motor Vehicles Rules as well as Rule 426 of the Tamil Nadu Motor Vehicles Rules, makes clear the following things:-
(a) that by virtue of Section 12(1), it is the Central Government which is empowered to frame rules for the purpose of licensing and regulating driving schools and such rules may provide for any or all of the matters listed in Section 12(2);
(b) that the Central Government has exercised its power under Section 12(1) by issuing the Central Motor Vehicles Rules, 1989, and prescribing under Rule 24(3) thereto, the norms and standards to be satisfied for the grant or renewal of licence for a driving school;
(c) that Rule 24(3) operates in certain aspects, as a complete Code in itself, in so far as certain norms and standards are concerned and it operates in certain other aspects, only as a rule conferring an element of discretion and an elbow space for the licensing authority to fix norms and standards in respect of those other aspects;
(d) that —
– the requirement to own or have on lease a premises, having adequate provision for conducting lecture and demonstration, besides adequate parking area,
– the requirement to own and maintain a minimum of one vehicle each of the type in which instruction is imparted,
– the requirement to have those vehicles fitted with dual control facility and to make available those vehicles exclusively for imparting training,
– the requirement to maintain the apparatus and equipments listed in clause (vi),
– the requirement for the Instructor to possess the qualifications prescribed in clause (vii),
are all norms and standards specified by Rule 24(3) itself and hence the licensing authority or any other authority (including the Transport Commissioner) would have no jurisdiction to tamper with these requirements.
(e) that the requirement to ensure the applicant and the staff working under him to be of good moral character, the determination of what constitutes “adequate provision” while approving the premises for the school, the determination of the sufficiency or otherwise of the financial resources of the applicant, etc., are all matters which are left by Rule 24(3) to the best of judgment or discretion of the licensing authority.
26. Consequently, even in the absence of a Circular by the Transport Commissioner (such as the one impugned in these writ petitions), the licensing authorities are within their powers, to reject an application for the grant or renewal of a licence to run a driving school, if the reasons for such rejection, fall within the area in respect of which an element of discretion is conferred on them. To put it differently, by Rule 24(3), the licensing authorities are conferred with the powers to determine by themselves, the standards to be fixed in respect of (i) good moral character (ii) the area of office space and (iii) financial resources. Therefore, if a licensing authority rejects an application on the ground that the applicant has resources only to the tune of Rs.20,000/- or on the ground that the applicant was not of good moral character or on the ground that the premises in which the school is located, is very small, the licensing authority cannot be accused of exercising a jurisdiction or power not vested in him, though there is always a scope to accuse him of arbitrary exercise of such power.
27. Once it is found that the licensing authorities are conferred with such discretion, under the very Rules framed by the Central Government, it becomes necessary, for the head of the Department to ensure that such discretion is exercised by all the licensing authorities functioning under his administrative control, in an uniform manner. Otherwise, it is possible for one licensing authority at Madurai to reject an application on the ground that the applicant has financial resources only to the extent of Rs.20,000/- and another licensing authority at Coimbatore to reject an application on the ground that the applicant before him has financial resources only to the extent of Rs.50,000/-.
28. It is only with a view to avoid arbitrary exercise of power by the licensing authorities and to ensure uniformity of standards throughout the State, that the Transport Commissioner, as the head of the Department, had issued the Circular impugned in these writ petitions. That he is authorised to issue such instructions, is borne out by the last part of Rule 426 of the Tamil Nadu Motor Vehicles Rules 1989. As pointed out earlier, the Circular issued by the Transport Commissioner covers only those areas which are left unoccupied by Rule 24(3) of the Central Motor Vehicles Rules 1989. A plain reading of Rule 24(3) makes it clear that it occupies the field only in respect of certain matters such as (i) ownership and maintenance of minimum of one vehicle (ii) availability of dual control facility in the vehicle (iii) the availability of the vehicle exclusively for training (iv) the availability of certain apparatus and equipments and (v) the qualifications essential for a person applying for driving school licence. The other matters are not only left unoccupied by Rule 24(3), but also left specifically reserved to the discretionary power of the licensing authorities. Therefore, the entire fulcrum of the case of the petitioners, as though by executive instructions, statutory provisions have been overridden and as though there is repugnancy and as though the Transport Commissioner has encroached into a territory occupied by or reserved to be occupied by the Central Government, is totally fallacious.
29. All the decisions relied upon by Mr.S.Ganesh, learned counsel and Mr.M.S.Krishnan, learned Senior Counsel for the petitioners, are for the proposition that executive instructions cannot override express provisions of the Statute or statutory rules. The proposition has now become too fundamental, to be supported by any authority. These decisions would be applicable only if the Transport Commissioner has issued instructions which run contrary to the requirements prescribed by the Rules framed by the Central Government. As stated earlier, the Circular issued by the Transport Commissioner, is just for the purpose of ensuring uniformity of standards and avoidance of arbitrary exercise of power by the licensing authorities, on whom the Rules framed by the Central Government confer a discretion. Therefore the main contention of the petitioners had to fall to the ground.
30. The contention raised by Mr.M.S.Krishnan, learned Senior Counsel for the petitioners, on the basis of the amendment brought forth to Rule 24(3)(ii), does not also advance the case of the petitioners. Rule 24(3)(ii) as it stood before and as it stands after, the amendment, has been extracted in paragraph-10 above. Before amendment, the first part of Rule 24(3)(ii) necessitated that the premises where the school was proposed to be conducted should be either owned or taken on lease or on hire. There is no change to this part of the Rule even after amendment. In the second part of the Rule, there was a requirement, before amendment, that the premises should have adequate provision for a lecture hall, room for demonstration, administrative section, reception room and sanitary block besides adequate parking area. After amendment, the second part of the Rule mandates that the premises should have adequate provision for conducting lecture and demonstration of models besides adequate parking area. The only change brought about by the amendment to the second part of Rule 24(3)(ii) is the deletion of compartmentalisation of the premises where the school is proposed to be located. Still, the Rule retains the discretionary power conferred upon the licensing authority, to decide what would be “adequate provision”. Therefore, the contention that what was deleted by the Central Government from the statutory Rules, has been reintroduced by way of a Circular by the Transport Commissioner, holds no water. So long as the statutory Rules issued by the Central Government do not specify that the premises should be located in a place measuring 200 sq. ft., or 300 sq. ft., or 500 sq. ft., but merely directs the licensing authority to ensure that the premises have “adequate provision”, any direction issued by the Transport Commissioner to the licensing authorities to achieve uniformity of standards or objectivity of criteria, cannot be found fault with.
31. Interestingly, all the licensing authorities in the State, were only following similar directions issued by the Transport Commissioner, with regard to all these matters, even before the impugned Circular was issued. By the impugned Circular, the Transport Commissioner has merely replaced an existing Circular. The Circular which was earlier in force, was never challenged by these petitioners, on the ground that the Transport Commissioner had no power or competence or on the ground that there was repugnancy. The petitioners applied for and obtained licences and also had them renewed, only after satisfying the standards prescribed in the previous Circulars, issued by the very same Transport Commissioner. Having acted in accordance with those earlier Circulars, issued by the very same authority, it may not be open to the petitioners to question his authority, merely because the standards now fixed are not acceptable to them.
32. Now coming to the challenge to the fixation of the age of the vehicle as 8 years under the impugned Circular, it is seen that the petitioners challenge the same on the basis of the provisions contained in certain Rules. Section 59(1) of the Act, empowers the Central Government to specify the life of a motor vehicle, having due regard to public safety, convenience and the objects of the Act. Rule 82(2) of the Central Motor Vehicles Rules, makes a tourist permit invalid, the moment a motor cab completes 9 years and any other vehicle completes 8 years. Rule 88 fixes the age limit in respect of a goods carriage, other than multiaxle vehicle, as 12 years and in respect of multiaxle vehicle as 15 years, for the purpose of grant of national permit. Similarly, Rule 169A(5) of the Tamil Nadu Motor Vehicle Rules fixes the age of an indigenous vehicle as 7 years and an imported vehicle as 10 years, if the vehicle is covered by a permit.
33. Thus, it is seen that different age limits are prescribed by the Central and State Rules for different purposes. None of the Rules, framed either by the Central Government or by the State Government, contain a prescription with regard to the age limit of the vehicle that could be used in a driving school for imparting training. Rule 24(3)(iv) and 24(3)(v) of the Central Motor Vehicles Rules, merely prescribe (i) that the applicant should own and maintain a minimum of one motor vehicle each of the type in which instruction is imparted (ii) that the vehicles are used exclusively for imparting training and (iii) that all such vehicles except motor cycles, are fitted with dual control facility. Clauses (iv) and (v) of sub Rule (3) of Rule 24, does not deal with the age limit. It is this gap which is now sought to be filled up by the Transport Commissioner, by prescribing that the age of the vehicle shall not be more than 8 years. Therefore, the prescription cannot be taken to be ultra vires the Central or State Rules. As a matter of fact, there is certainly a rationale behind such fixation, since even the manufacturers of automobiles withdraw old models and introduce new ones, once in 3/5 years. A lot of innovation and improvement is made in the models, partly for the purpose of pumping the market with new vehicles and partly for the purpose of enhancing safety and comfort (or luxury). Therefore, the contention with regard to the fixation of age and maintenance of the vehicles, cannot also be accepted.
34. As I have observed earlier, the learned Advocate General has fairly conceded that in respect of existing schools, the requirement under paragraph 3.1.10 of the impugned Circular, to provide a Solvency Certificate for Rs.3 lakhs would not be insisted upon. He has also conceded that the ban on the use of public road under paragraph 3.1.48 would also not be enforced, except to the limited extent that the initial stages of training should be only in an open ground. The challenge of the petitioners to the other requirements viz., (i) to have a premises measuring 1,000 sq. ft., and (ii) to have a vehicle not older than 8 years, is not well founded. Therefore, the writ petitions are liable to be dismissed.
35. However, it is seen from paragraph 8 of the impugned Circular that the existing schools were granted six months time to have in place, the requirements prescribed under the Circular. The petitioners were in enjoyment of interim orders, pending the writ petitions. Therefore, I am of the view that the petitioners may be justified in seeking extension of time to comply with the requirements.
36.Therefore, in view of the above, all the writ petitions are dismissed. However, the petitioners are granted liberty to approach the Transport Commissioner for extension of time to comply with the requirements prescribed under the impugned Circular and the Transport Commissioner may consider any such request, sympathetically. There will be no order as to costs. Consequently all the miscellaneous petitions are also dismissed.
Svn
To
1.The Secretary to Government,
Transport Department,
Fort St. George,
Chennai-600 009.
2.Special Commissioner and Transport
Commissioner, Transport Department,
Chepauk,
Chennai 600 005