IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.06.2008 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR Writ Petition No.38675 of 2006 M.P.Nos.2 and 3 of 2006 Tvl.Meenambakkam Driving School, Owner's Welfare Association, rep. By its President, A.K.Jayaseelan ... Petitioner Vs. 1. The Secretary, Government of Tamil Nadu, Home (Transport) Department, Fort St. George, Chennai-9. 2. The Transport Commissioner cum State Transport Authority, Chepauk, Chennai-5. .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorari to call for the records of the second respondent relating to circular No.10/2006 in Na.Ka.No:Ka1/38202/2006, dated 07.07.2006 and followed by consequent circular No.32/2006, dated 08.09.2006 in Na.Ka.No.Ka.1/55040/2006 and quash the same in so far as the members of the petitioner's Association are concerned. For petitioner : Mr.N.Gopalakrishnan For respondents : Mr.P.Subramanian, Govt. Advocate O R D E R The petitioner, who is a registered Driving School Owner's Welfare Association, has challenged Condition No.2 of circular No.10/2006 in Na.Ka.No:Ka1/38202/2006, dated 07.07.2006 and Condition No.5 of circular No.32/2006, in Na.Ka.No.Ka.1/55040/2006, dated 08.09.2006. 2. Facts leading to the Writ Petition are as follows: The members of the petitioner's association are licenced under Rule 24 of the Central Motor Vehicles Rules and they impart instructions to the students for driving Motor Vehicles. The licence under Form 11 granted by the Licencing Authority is valid for a period of five years and renewable thereafter. As per Rule 24(3) of the Central Motor Vehicles Rules, the Licencing Authority, when considering the application for grant or renewal of licence under this Rule, shall have regard to the following matters, viz., (i) The applicant and the staff working under him are of good moral character and are qualified to give driving instructions and (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 vehicles meant to be used for imparting of instructions in driving. 3. The petitioner has further submitted that in order to help the students, who take instructions for driving, the owner of the Driving School assists them in paying the prescribed fee for obtaining Learner's Licence, receive the licences from the Transport Office under authorisation and hand over the same to the students. In so far as the grant or renewal of a Learner's Licence is concerned, a driving certificate in Form 2, issued by the driving school has to be enclosed. Thus, the role of the driving school is not only to educate the trainees in driving a Motor Vehicle, but also to make necessary applications on their behalf to obtain Driving Licence/Learner's Licence, as the case may be. 4. The petitioner has submitted that the second respondent has issued a circular No.10/2006, to the effect that in all the Regional Transport Offices, separate registers have to be maintained, indicating the serial number, date, the name of the applicants, the purpose for which the applicant has come to the Regional Transport Office, etc. Clause 4 of the said Circular states that for obtaining Learner's licence, Driving licence, and for renewal of licence etc., the applicant alone should sign the register kept in the Government Offices. Clause 5 of the said Circular prohibits the brokers and outsiders to enter into the Transport Offices. Clause 7 mandates that persons without necessary tokens, viz., brokers and outsiders inside the premises of the Transport Offices, if present, should be informed to the nearest Police Station. Apart from above conditions, Clause 2 states that the fee for the Learner's Licence should be paid only by the applicant. 5. It is the grievance of the petitioner that imposing such stringent conditions in not allowing the members of the petitioner's association to submit the applications on behalf of the trainees and restraining them from entering into the Regional Transport Officers for such purpose, would amount to violation of fundamental rights of the members of the petitioner's Association and it is contrary to the Motor Vehicles Rules. As per Rule 137 of the Tamil Nadu Motor Vehicles Rules, any communication issued by the Transport Authority or the executive officers of such authorities or by the Government or by the Tribunal may be served by the Executive Officers of the Transport Authorities or any other office authorised by them in this behalf, by any of the following methods, viz. : (a) by delivery or tender of a copy of the communication to the addressee or his agent or the other person duly authorised to receive such communication on his behalf, (b) by registered post. As per Rule 137(2) of the Tamil Nadu Motor Vehicles Rules, any communication could be served upon the agent by obtaining his/her signature. 6. The petitioner has further submitted that as per Rule 430 of the Tamil Nadu Motor Vehicles Rules, Driving Licence can be handed over to the applicant or to any authorised person, who is not a tout to receive the driving licence subject to the production of authorisation letter with Court fee stamp of Rs.2/- affixed. In view of the above provision, the petitioner has submitted that the conditions imposed by the second respondent in Circular No.10 of 2006, dated 07.07.2006 and Circular No.32/2006, dated 08.09.2006, are contrary to the Motor Vehicles Act and the Rules framed thereunder. Aggrieved by the conditions imposed in the above circulars, the petitioner has filed the present Writ Petition on the following grounds: (1) The impugned circulars of the second respondent are contrary to the decision of this Court in W.P.No.13121 of 1997, dated 24.09.1997, wherein, this Court at Paragraph 6, held as follows: "In neither the Motor Vehicles Act nor the Rules, there is a prohibition against the order of a contract carriage or motor vehicle that he should not authorise any person to receive the documents. It is true that the Government has got the power to prevent touts from appearing on behalf of the owner on the ground that they cause nuisance in the very office. But, under the guise of preventing the touts causing nuisance, the fundamental right of the owner of the vehicle to authorise a person should not be restricted." (2) The petitioner, referring to Paragraph 7 of the above said judgment, has submitted that as the Government have not issued any guidelines relating to the function of authorised agents, there cannot be restriction of the fundamental right of the members of the petitioner's association under the guise of controlling the entry of touts. (3) Though while applying Learner's Licence and Driving Licence, the presence of the applicant is mandatory, the members of the petitioner-association are only helping the candidates in paying the prescribed fee. After the procedural formalities are over, the licences will be collected and handed over to the trainees. Payment of licencee fee on behalf of the trainees and entry into the Transport Office, cannot be prohibited by the Circulars, which are illegal and it is an arbitrary exercise of power by the second respondent and his subordinates. (4) Condition Nos.4 and 5 of Circular No.10 of 2006, preventing entry of the members of the petitioner's association inside the Regional Transport Offices to get the driving licences on behalf of the trainees is against the provisions of the Motor Vehicles Act and the Rules framed thereunder. 7. The respondents in their counter affidavit have submitted that from 01.07.1989 onwards, the erstwhile Tamil Nadu Motor Vehicles Rules, 1940 was repealed by the Tamil Nadu Motor Vehicles Rules, 1989. Likewise, the Motor Vehicles Act, 1939, was replaced by "Motor Vehicles Act, 1988 and the Central Motor Vehicle Rules, 1989 were framed based on the provision of the parent Act. The matters relating to the Licencing of drivers and registration of the motor vehicles were brought under the domain of the Central Government by Central Motor Vehicle Rules. Rule 24 of the Central Motor Vehicle Rules enables the licensing authorities to see the licensing of the driving school in their respective jurisdiction are established for imparting instructions in driving motor vehicles. Rules 25 to 31 of the above said Rules deal with matters relating to issue, renewal, conditions to be observed by the holder of the driving school, power of the licencing authority to suspend or revoke such licence, procedure for filing appeal and the syllabus for imparting instructions in driving of motor vehicles. 8. The respondents have further submitted that the procedure for obtaining Learner's Licence is that the applicant has to appear before the Licencing Authority after payment of requisite fee in the Office of the Licencing Authority. Soon after the payment of fee, the Licencing Authority, after conducting a preliminary test to the effect that the applicant possesses adequate knowledge and understanding of traffic signs, signals, road regulations etc., issues the Learner's Licence, which is defined under Section 2 (19) of the Motor Vehicles Act. The respondents have further submitted a person desires of getting a driving licence after having a thorough practice in driving motor vehicles by himself or through a driving school may appear before the Licencing Authority for the test of competence. The same procedure is followed in respect of endorsement of licence, which enables the holder to drive another class of vehicle, which will be just an addition in the existing driving licence. 9. According to the respondents, Rule 32 of the Central Motor Vehicle Rules, 1989, specifies only the fee to be charged and does not say as to how it has to be paid and the procedure to be adopted therefor. Therefore, the procedure for collection of fee specified under the Motor Vehicles Rules, has to be taken care by the Licencing Authority. The mode of collection of fee, squarely falls within the Administrative competence of the Licencing Authority and as such, the second respondent as the head of the department, as defined under Sub-Rule (cc) of Rule 3 of the Tamil Nadu Motor Vehicles Rules, 1989 and by virtue of Section 213 of the Motor vehicles Act, 1988, is competent to issue administrative circulars for the smooth and efficient functioning of the department with the object of speedy delivery system. 10. The respondents have further submitted that Rule 430 of the Tamil Nadu Motor Vehicles Rules, 1989, enables a person authorised by the applicant to receive a document on his behalf subject to the production of an authorisation letter duly signed and given by the applicant, to be affixed with Court fee stamp to the value of Rs.2/-. The documents specified in that rule include driving licence also. But the authorised person should not be a "tout" and the term "tout", means a person who arranges to get things done in the Offices of the Transport Department on behalf of the public for monetary considerations. It is further submitted that one person cannot be nominated or authorised by so many persons to receive documents from the authorities. 11. The respondents have further submitted that on receipt of numerous complaints regarding the malpractices of the driving school licence holders, the second respondent himself, during his surprise inspection, noticed that a staff member of a driving school was trying to pay fees on behalf of 20 persons in one of the Regional Transport Offices in Chennai City. Circular No.32/06 was issued on 08.09.2006 to control and regulate the entry of the driving school licence holders from entering into the Regional Transport Offices on behalf of the students under the guise of making payment of fees for obtaining the Learner's Licence. Such restriction is imposed against the owners of the Driving Schools, keeping in mind, the problems faced by the applicant in the matter of Learner's Licence. As per the procedure, the applicant himself has to fill up the forms, make payment and undergo the tests to show that they possess knowledge and understanding with regard to traffic signs, signals before the competent authority and the Learner's Licence is issued on the third day. After the introduction of computerisation in the Regional Transport Offices, the applicant, who applies for a driving licence is required to pay the licence fee, undergo the test and on his success in the test, he is photographed in the Photo Section and the licence is issued on him on the same day, within 30-40 minutes, and no authorisation is required for the purpose. 12. It is further submitted that circular, dated 07.07.2006, was issued by the second respondent for speedy delivery of licences and for simplifying the procedure, by enhancing the manpower of the existing staff members, to ensure a good name among the public, besides improving the image of the department. That is why, in Clause-5 of paragraph 2 of the said circular, it has been specifically instructed that "bulk applications" should not be accepted from a single person, regardless of the fact whether he carries an authorisation letter or not, because it would encourage the intrusion of middle men/outsiders in Transport Department Offices. It is further submitted that Circular No.32 of 2006, issued in R.No.H1/55040/2006, dated 08.09.2006, only reiterated the earlier circular instructions, that driving schools, which indulge in activities, which are unbecoming of them shall be proceeded with as per the penal provisions of the Central Motor vehicles Rules, 1989 and the circular further states that the staff members, who fail to adhere to the instructions, would be liable for severe disciplinary action. As stated supra, the instructions are issued, only with the good intention to improve the public delivery system in a fair and speedy manner without any interference by middlemen/outsiders. The circulars in no way curtail the rights and functions of the driving schools and they do not offend their fundamental rights. 13. The respondents have further submitted that as the petitioner's association does not own any driving school, there is no locus standi for the petitioner to maintain this Writ Petition. It is further submitted that the licence of a driving school or its establishment is granted by the Licensing Authority only for the purpose of imparting training to the students enrolled in the school and it is not correct to say that the members of the association are entitled to assist the candidates in getting their learner's licences, which is not provided under the provisions of the Act and the Rules framed thereunder. 14. According to the respondents, Rules 137 and 430 of the Tamil Nadu Motor Vehicle Rules, do not empower the applicants to authorise the driving school owners or their representatives to pay the licence fee on their behalf. Rule 137 relates to the mode of communication of service by the Regional Transport Authority, in matters of public hearing, which comes under Chapter V of the Rules, i.e., "Control of Transport Vehicles". Likewise, Rule 430 of the Tamil Motor vehicle Rules, was framed at the time, when the works relating to issue of driving licences were done manually by all the Transport Offices. From the year 1996 onwards, the driving licences are being issued through computers and in that process, the applicants should appear before the web camera and get photographed, entries are made by the Assistant licensing Authorities, after affixing the signatures of the candidates in the Driving Licence, the laminated licence are finally handed over to the applicants in person on the spot. All these process takes about 30 minutes and one can get his driving licence from the Licensing Authorities within 30-40 minutes of his appearance after having passed the test of competence and that there is no necessity for authorising another person to get the driving licence. In the present scenario, Rule 430 of the Rules has become redundant in so far as receipt of driving licence. 15. The respondents have further submitted that the aim of introducing a system of issuing tokens to the applicants, who visit the Transport Offices for various purposes, is to eradicate the middlemen/touts/outsiders from entering the offices of the Transport Department for getting the things done on behalf of the applicants for monetary considerations. It is further submitted that the scope and functions of the holder of a Driving School are very limited and he has no role of assisting an applicant, who is desirous of getting a learner's licence, which is a process prior to the enrollment of an applicant in a driving school. Only after a person with a valid learner's licence approaches the driving school for the purpose of getting training in motor vehicles, he shall be enrolled and his name would be registered in Form-14. After imparting the training to the students in accordance with the syllabus prescribed under Rule 31, the driving school shall issue a certificate in Form 5 to enable the student to appear before the Licensing Authority for a test of competence and the role of the institution ends at this place and it is therefore submitted that the impugned circulars are not violative of provisions of the Act or the Rules framed thereunder. 16. The respondents have further submitted that the Driving Schools are like consultancy service and they are not supported by any provisions of law. Sub-Rule (2) of Rule 12 of the Central Motor Vehicles Rules, enable the Central Government to frame Rules for the purpose of regulating the driving schools and therefore, condition Nos.2, 4 and 5 of Circular 10 of 2006 and 32 of 2006 did not in any way affect and take away the rights of the driving schools. Heard the learned counsel appearing for the parties and perused the materials available on record. 17. Before dealing with the issue as to whether the members of the driving school owners' welfare association have a statutory right to demand payment of necessary fee on behalf of those who apply for Learner's Licence, it is necessary to extract few provisions of the Central Motor Vehicles Rules, 1989, under which, the Driving Schools and Establishments are licenced to impart instructions for learners. Rule 24 of the Central Motor Vehicles Rules, 1989 deals with the Driving Schools and Establishments and it reads as follows: "(1) No person shall establish or maintain any driving school or establishment for imparting instructions for hire or reward in driving motor vehicles without a licence in Form 11 granted by the licensing authority. (2) An application for the grant or renewal of a licence under sub-rule (1) shall be made in Form 12 or Form 13, as the cases may be, to the licensing authority having jurisdiction in the area in which the school or establishment is situated and shall be accompanied by appropriate fee as specified in Rule 32. Explanation:- For the purpose of this rule and Rules 25 to 28 "licensing authority" means an officer not below the rank of the Regional Transport Officer of the Motor Vehicles Department established under Section 213. (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 provisions for conducting lecture and demonstration of models besides adequate packing 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 staff employed by him for imparting instruction 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 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 to 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 sub- Clause. (4) The licensing authority may, on receipt of an application under sub-rule (2) and after satisfying that the applicant has complied with the requirements of sub-rule (3), grant or renew a licence in Form 11 within a period of ninety days from receipt of such an application. (5) No application of licence shall be refused by the licensing authority unless the applicant is given an opportunity of being hear and reasons for such refusal are given in writing by the licensing authority." 18. Under Rule 27, the general conditions to be observed by the holder of the licence are given and they are extracted hereunder, "(a) maintain on an annual basis, a register in Form 14 and an alphabetical list of the names of the students admitted during the year; (b) conduct the training course according to the syllabus specified in Rule 31; (c)[***] (d) issue to every student who has completed the course a certificate in Form 5; (e) submit to the licensing authority which granted the licence such information or return as may be called for by it from time to time for the purposes of this chapter; (f) not shift the school or establishment from the premises mentioned in the licence without prior approval in writing of the licensing authority, which granted the licence; (g) keep the premises of the school or establishment and the record and registers maintained by it at all reasonable times open for inspection by the licensing authority or by any person authorised in this behalf by the