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.1,1,1,1,1,2,2,2 and 2 of 2007, 2,2,2,2,3,2,3,2 and 1,1,1,1,1 of 2008 and 1 & 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 https://hcservices.ecourts.gov.in/hcservices/ W.P.Nos.36100 & 36101 of 2007 Tvl.Dharmapuri District Driving School Owners Association, 23-B, Nethaji Bye-Pass Road, Dharmapuri-1, Rep by its President Rafeek Jone ..Petitioner in W.P.No.36100/2007 Tvl.Salem District Driving School Owners Association, No.10, Gandhi Road, Salem 636 007 Rep.by its secretary S.Ranjith ..Petitioner in W.P.No.36101/2007 vs 1.The State of Tamilnadu Rep.by its Secretary, Home (Transport) Dept. Fort St.George, Chennai-9. 2.The Special Commissioner -Cum- Transport Commissioner, Ezhilagam, Chepauk, Chennai-600 005 ..Respondents 1 & 2 in both the W.Ps. 3.The Licensing Authority -Cum- Regional Transport Officer, Dharmapuri. ..Respondents 3 in W.P.No.36100/07 4.The Licensing Authority-Cum- Regional Transport Officer, Salem. ..Respondents 3 in W.P.No.36101/07 W.P.No.36770 of 2007: Driving School Owners' Association, Rep., by it Secretary Mr.A.Balasubramanian 2.A Salem Road Corner(II Floor) Namakkal-637 001. ..Petitioner vs 1.The State of Tamil Nadu, Rep., by its Secretary to Government, Transport Department Fort St.George, Chennai-9. https://hcservices.ecourts.gov.in/hcservices/ 2.The Transport Commissioner, Transport Department, Chepauk, Chennai-5. ..Respondents W.P.No.37377 of 2007: 1.Krishnagiri Mavatt Ottunar Payeerchi Palli Urimaiyalargal Sangam rep. by its president B.C.Raja No.46-G T.B.Road Near Murugan Theatre Old Pet, Krishnagiri-635 001 ..Petitioner vs 1.The Special Commissioner and Transport Commissioner, Chepauk, Chennai-5. 2.The State of Tamilnadu, rep. by its Secretary to Government Transport Department, Fort St.George, Chennai-9. 3.The Regional Transport Officer, Regional Transport Office, Krishnagiri. 4.The Regional Transport Officer, Regional Transport office, Dharmapuri. ..Respondents W.P.NO.279 of 2008 Tvl.Chennai Vadaku Perambur Paguthi Driving School Urimaiyalar Nala Sangam, No.93, S.R.P.Koil Street, Paravallur, Chennai-82 rep.by its President Mr.S.C.Janardhanan ..Petitioner vs 1.The State of Tamilnadu Rep.by its Secretary, Home (Transport) Dept. Fort St.George, Chennai-9. https://hcservices.ecourts.gov.in/hcservices/ 2.The Special Commissioner -Cum Transport Commissioner, Ezhilagam, Chepauk, Chennai-600 005. 3.The Licensing Authority -Cum- Regional Transport Officer, Chennai North, Vysarpadi, Chennai-39. 4.The Licensing Authority-Cum- Regional Transport Officer, Chennai East, Chennai-12. ..Respondents W.P.No.732 of 2008: I.Edwin Jose Prop.Moshba Edwin Driving School, Kandarvilagam Vaniyakudi Post, Colachel, Kanyakumari District ..Petitioner Vs. 1. The State of Tamil Nadu rep. by its Secretary to Government, Transport Department, Fort.St.George, Chennai - 9. 2. The Special Commissioner and The Transport Commissioner, Transport Department, Chepauk, Chennai - 5. ..Respondents W.P.No.2259 of 2008: 1. Coimbatore Driving School owner's Welfare Association A Society Regd. under the Tamil Nadu Societies Regn. Act No.25/2007,1444,Trichy Road, Coimbatore 641 018 rep.by its Secretary Mr.C.V.Sundareswaran 2. C.V.Sundareswaran ..Petitioners Vs. 1. The State of Tamil Nadu rep. by its Secretary to Government, Transport Department, Fort.St.George, Chennai - 9. https://hcservices.ecourts.gov.in/hcservices/ 2. The Special Commissioner and The Transport Commissioner, Transport Department, Chepauk, Chennai - 5. 3. The Deputy Transport Commissioner, Regional Transport Office, Balasundaram Road, Coimbatore 641 018 ..Respondents WP.No.2447 of 2008: Nagai District Driving School owners Association rep.by its President Mr.V.Ramaswamy 8/30 Tharangampadi Salai, (I Floor), Myladuthurai. ..Petitioner vs. 1. The State of Tamil Nadu rep. by its Secretary to Government, Transport Department, Fort.St.George, Chennai - 9. 2. The Transport Commissioner, Transport Department, Chepauk, Chennai - 5. ..Respondents WP.No.5539 of 2008: Thiruvarur District Driving School owners Welfare Association rep. by its Secretary G.Dhanapal, 3-C,V.R.N.Building, Mada Veedhi, Thiruvarur - 610 002. ..Petitioner vs. 1. The State of Tamil Nadu rep. by its Secretary to Government, Transport Department, Fort.St.George, Chennai - 9. 2. The Transport Commissioner, Transport Department, Chepauk, Chennai - 5. ..Respondents https://hcservices.ecourts.gov.in/hcservices/ WP.No.12837 of 2009: Tvl.South India Driving Schools Owner's Federation, No.4,Second Floor, 12th Street, Nanganallur, Chennai - 61. rep. by its President Mr.S.Shanmugam. ..Petitioner vs. 1. The State of Tamil Nadu rep. by its Secretary, Home (Transport) Department, Fort.St.George, Chennai - 9. 2. The Special Commissioner and The Transport Commissioner, Chepauk, Chennai - 5. ..Respondents WP.No.14540 of 2009: S.Shanmuga Velayutham ..Petitioner Vs. 1. The Principal Secretary cum Transport Commissioner, Chepauk, Chennai - 5. 2. The Licensing Authority cum Regional Transport Officer, Coimbatore South, Coimbatore. ..Respondents The writ petitions are filed under Article 226 of the Constitution of India, praying for the issue of a Writs of Certiorari, (1) 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 (in WP.No.35479/2008, 361002, 36101/2007, 36770/2007, 279/2008, 732/2008, 2259/2008, 2447/2008, 5539/2008, 12837/2009. (2) Certiorarified Mandamus calling for the records of the 1st respondent pertaining to Letter R.NO.51018/H1/07 dated 31.10.2007 (Circular No.43/2007) and quash the same and consequently direct the respondents to grant fresh licenses and renew existing licenses for members of the Petitioner Sangam on in accordance with law and in conformity with the norms set under the Motor Vehicles Act 1988 and https://hcservices.ecourts.gov.in/hcservices/ by the Central Motor Vehicles Rules 1989 framed by the Central Government under Section 12 of the Motor Vehicles Act 1988 (in W.P.No.37377/07) (3) mandamus, directing the 2nd respondent herein to consider and pass order on the petitioner's application, dated 2.8.2005 for establishment of a Driving School (in WP.14540/09) For Petitioners : Mr.N.Gopalakrishnan, Mr.S.Ganesh, Mr.R.Natesan, Counsel and Mr.M.S.Krishnan Sr.Counsel for M/s. Sarvabhauman Associates Mrs.Nalini Chidambaram, Senior Counsel for Ms. C. Uma 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 https://hcservices.ecourts.gov.in/hcservices/ 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. https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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. https://hcservices.ecourts.gov.in/hcservices/ 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. https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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}. https://hcservices.ecourts.gov.in/hcservices/ (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:- https://hcservices.ecourts.gov.in/hcservices/ (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, https://hcservices.ecourts.gov.in/hcservices/ 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