IN THE HIGH Court OF JUDICATURE AT MADRAS DATED : 28-07-2010 C O R A M THE HONOURABLE MRS. JUSTICE R. BANUMATHI and THE HONOURABLE MR. JUSTICE B.RAJENDRAN W.A. Nos. 613, 633, 634, 635, 817 and 889 of 2010 and M.P. Nos 1 to 1 of 2010 W.A. No. 613 of 2010 Tvl. South India Driving Schools Owners Federation No.4, Second Floor 12th Street, Nanganallur Chennai – 600 061 rep. By its President S. Shanmugam .. Appellant/Petitioner Versus 1.The State of Tamil Nadu represented by its Secretary Home (Transport) Department, Fort St. George, Chennai - 600 009 2. The Special Commissioner and Transport Commissioner Chepauk, Chennai-600 005 .. Respondents/Respondents W.A. No. 633 of 2010 Tvl. Chennai Vadakku Perambur Paguthi Driving School Urimaiyalargal Nala Sangam No.93, S.R.P. Koil Street Peravallur, Chennai – 82 rep. By its President S.C. Janardhanan .. Appellant/Petitioner Versus 1. The State of Tamil Nadu rep. by its Secretary Home (Transport) Department Fort St. George, Chennai-600 009 2. The Special Commissioner cum Transport Commissioner Chepauk, Chennai-600 005 3. The Licensing Authority cum Regional Transport Officer Chennai North Chennai – 39 https://hcservices.ecourts.gov.in/hcservices/ 4. The Licensing Authority cum Regional Transport Officer Chennai East Chennai – 12 .. Respondents/Respondents W.A. No. 634 of 2010: Tvl. Dharmapuri District Driving School Owners' Association 23-B, Nethaji Bye-pass Road Dharmapuri – 1 rep. By its President Mr. Rafeek Jane .. Appellant/Petitioner Versus 1. The State of Tamil Nadu rep. by its Secretary Home (Transport) Department Fort St. George Chennai-600 009 2. The Special Commissioner cum Transport Commissioner Chepauk Chennai-600 005 3. The Licensing Authority cum Regional Transport Officer Dharmapuri .. Respondents/Respondents W.A. No. 635 of 2010 Tvl. Salem District Driving School Owners' Association 10, Gandhi Road Salem – 636 007 rep. By its Secretary S. Ranjith .. Appellant/Petitioner Versus 1. The State of Tamil Nadu rep. by its Secretary Home (Transport) Department Fort St. George Chennai-600 009 2. The Special Commissioner cum Transport Commissioner Chepauk Chennai-600 005 3. The Licensing Authority cum Regional Transport Officer Salem. .. Respondents/Respondents https://hcservices.ecourts.gov.in/hcservices/ W.A. No. 817 of 2010 1. Coimbatore Driving School Owners Welfare Association a society registered under the Tamil Nadu Societies Registration Act No.25 of 2007 1444, Trichy Road Coimbatore – 641 018 rep. By its Secretary C.V. Sundareswaran 2. C.V. Sundareswaran .. Appellants/Petitioners Versus 1. The State of Tamil Nadu rep. by its Secretary to Government Transport Department Fort St. George, Chennai-600 009 2. The Special Commissioner and Transport Commissioner Transport Department Chepauk, Chennai-600 005 3. The Deputy Transport Commissioner Regional Transport Office Balasundaram Road Coimbatore – 641 018 .. Respondents/Respondents W.A. No. 889 of 2010 1.Tamil Nadu Driving Schools Owners Federation, a Society Registered under the Tamil Nadu Societies Registration Act, 12, GST Road, Pallavaram, Chennai-600 043 represented by its State Secretary, A.K.Jayaseelan 2.Mr.A.K.Jayaseelan .. Appellants/Petitioners Versus 1. State of Tamil Nadu rep. 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/Respondents https://hcservices.ecourts.gov.in/hcservices/ W.A. No. 613 of 2010: Appeal under Clause 15 of the Letters Patent against the Order dated 28.10.2009 made in W.P. No. 12837 of 2009. Writ Petitions 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.31.10.07 and quash the same. (in WP.12837/09,279/08,36100/07,36101/07,2259/08,35479/07) W.A. No. 633 of 2010: Appeal under Clause 15 of the Letters Patent against the Order dated 28.10.2009 made in W.P. No. 279 of 2008 Writ Petitions 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.31.10.07 and quash the same. (in WP.12837/09,279/08,36100/07,36101/07,2259/08,35479/07) W.A. No. 634 of 2010: Appeal under Clause 15 of the Letters Patent against the Order dated 28.10.2009 made in W.P. No. 36100 of 2007. Writ Petitions 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.31.10.07 and quash the same. (in WP.12837/09,279/08,36100/07,36101/07,2259/08,35479/07) W.A. No. 635 of 2010: Appeal under Clause 15 of the Letters Patent against the Order dated 28.10.2009 made in W.P. No. 36101 of 2007. Writ Petitions 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.31.10.07 and quash the same. (in WP.12837/09,279/08,36100/07,36101/07,2259/08,35479/07) W.A. No. 817 of 2010: Appeal under Clause 15 of the Letters Patent against the Order dated 28.10.2009 made in W.P. No. 2259 of 2008. Writ Petitions 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.31.10.07 and quash the same. (in WP.12837/09,279/08,36100/07,36101/07,2259/08,35479/07) W.A. No. 889 of 2010: Appeal under Clause 15 of the Letters Patent against the Order dated 28.10.2009 made in W.P. No. 35479 of 2007. Writ Petitions 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.31.10.07 and quash the same. (in WP.12837/09,279/08,36100/07,36101/07,2259/08,35479/07) For Appellants : Mrs. Radha Gopalan in W.A. No. 613 of 2010 Mr. N. Gopalakrishnan in WA Nos. 633 to 635/2010 Mr. R. Thiagarajan, Senior Counsel for Mr. S.Ganesh in W.A. No. 817 of 2010 https://hcservices.ecourts.gov.in/hcservices/ Mr. M.S. Krishnan, Senior Counsel for M/s. Sarvabhauman Associates in W.A. No. 889 of 2010 For Respondents : Mr. P.S. Raman, Advocate General assisted by Mr.M. Dhandapani Special Government Pleader(Writs) for RR 1 & 2 in WA.613 & 889/10 for RR 1 to 4 in WA.633/2010 and for RR 1 to 3 in WA.817,634,635/10 COMMON JUDGMENT B. Rajendran, J All these appeals are filed by the various Associations of the Driving School owners against the common order dated 28.10.2009 passed by the learned single Judge in WP Nos. 12837 of 2009, 279 of 2008, 36100 of 2007, 36101 of 2007, 2259 of 2008 and 35479 of 2007 respectively. 2. The main contentions urged by the appellants are, by the Circular dated 31.07.2007 bearing Circular No.43/07, the Special Commissioner and Transport Commissioner has directed all the licensing authorities to take into account the matters enlisted in para No.3.1.1 to 3.1.48 while considering the application for grant of license for establishing a driving school. The appellants are aggrieved by clause 3.1.2 relating to infrastructural amenities to be provided whereby it was directed that the driving schools should have fire-proof pucca building, either owned by the licensee or taken under lease or rent in their name for atleast five years having a minimum space of 1000 sq.ft., so as to have enough space for providing all the requirements namely space for office room measuring 10' X 10', space for lecture hall having an extent of 15' X 10', space for traffic education room to an extent of 15' X10', adequate parking area within the premises of the school to accommodate the vehicles in which instructions are imparted with one motor cycle and one Light Motor Vehicle 350 sq.ft., an additional space at the rate of 560 sq.ft., for heavy passenger motor vehicle and 420 sq.ft., for heavy goods vehicle. Further, it was contemplated that all basic amenities such as drinking water, toilet facilities, rest room etc., should be provided in the driving schools. There are various other conditions imposed in the circular such as furnishing solvency certificate for a sum of not less than Rs.3 lakhs and public roads should not be used for imparting driving training by the training school. According to the appellants, if the circular issued by the second respondent is implemented, then almost all the driving schools across the State have to be closed down, as the conditions stipulated in the circular are onerous. If the driving schools are required to be established in a land having an extent of 1000 sq.ft., in a city like Chennai, even if the land is owned or taken on rent, it would require atleast Rs.30,000/- to Rs.55,000/- as rent per month with one instructor for every 20 students, which is practically not possible. Furthermore, the direction issued by the Transport Commissioner is invalid as he has no authority to issue such circular and only the https://hcservices.ecourts.gov.in/hcservices/ Central Government is entitled and empowered to impose any condition or make any Rule or issue direction. The scheme of Motor Vehicles Act, 1998 in respect of matters which require uniformity in standard throughout the country contemplates that it is the Central Government which is empowered to frame Rules and therefore the circular dated 31.10.2007 was issued without authority of law. 3. The learned single Judge, considering the argument of counsel on either side and after elaborate discussion, dismissed the writ petitions by a common order dated 28.10.2009, resultantly, the present writ appeals have been filed by the appellants. 4. Mr. M.S. Krishnan, learned senior counsel appearing for the appellant in W.A. No. 889 of 2010 mainly contended that a mere perusal of Section 12 of the Motor Vehicles Act, read with Rule 24 to 32 of the Central Motor Vehicle Rules would show that the power with regard to framing of Rules, imposing conditions etc., vest with the Central Government and the State Government or its officers are only authorities for implementation of such Rules framed by the Central Government. Therefore, the State Government has no Rule making power or has not been given any Rule making power to regulate the driving schools. Even if any such Rule is made, it would be wholly out of the provisions of Motor Vehicles Act,1988. The circular No.43 of 2007 issued by the second respondent, in his capacity as Transport Commissioner, contains draconian provisions, which would lead to closing down of numerous driving schools across the State. Therefore, the conditions imposed by the Transport Commissioner are not only ultravires his powers, but also violative of the Fundamental rights guaranteed to the citizens of the State to run driving schools. The learned senior counsel further contended that the field is fully covered by the Central Government and the State authorities are only implementing authorities and therefore, the transport commissioner is not competent to issue the circular, for which he has no authority under law. Therefore, according to the learned senior counsel, the circular dated 31.10.2007 has been issued by the Transport Commissioner without authority of law. 5. Mr. R. Thiagarajan, learned senior counsel for the appellant in W.A. No. 817 of 2010 would specifically contend that the Regional Transport Officers are all authorities under the Central Government with powers to grant licences, which according to the learned senior counsel, is a quasi-judicial function. Therefore, when the instructions are being given by a higher authority namely Transport Commissioner, it will lead to anamalous situation for a superior authority interfering with the powers of the subordinate officers, especially in exercising of his discretion, which is per se illegal. Moreover, it is a field occupied by the Central Government and the State Government has no power to issue any circular, which contravenes the Act and Rules of Central Act. 6. Mr. Gopalakrishnan, learned counsel for the appellant in W.A. No. 633 to 635 of 2010 argued that the Rule relating to fixation of age limit for a vehicle, that too the vehicle should not be 8 years old, is totally contrary to the provisions contemplated under the Central Act. He would specifically argue that in the Central Act, Section 59 (1) empowers the State Government to specify the life https://hcservices.ecourts.gov.in/hcservices/ of motor vehicles. Under Rule 82 (2) of the Central Motor Vehicle Rules, for tourist permit taxis, the age is fixed at 8 years and after completion of 8 years, the permit will automatically lapse. Similarly, Rule 88 contemplates the age limit in respect of goods carriage other than multi axle vehicles, as 12 years and in respect of multi axle vehicle, it is 15 years for the purpose of grant of national permit. Further, Rule 169 (a) (5) of Tamil Nadu Motor Vehicle Rules fixes the age of indigenous vehicle as 7 years and imported vehicle as 10 years, if the vehicle is covered by permit. Therefore, when the Central Government has fixed the age of the vehicle specifically as per Rule and left it open in so far as driving schools are concerned, as regards the age of the vehicle, it is not open to the State Government, by way of circular, to fix the age of the vehicle to be used in a driving schools. Therefore, it is contrary to the Central Acts and Rules. 7. Mrs. Radha Gopalan, learned counsel appearing for the appellant in W.A. No. 613 of 2010 submitted that the Central Rule itself are very elaborate giving minute details and therefore, it is not open to the State Government, by way of an administrative instructions, to supplement or give any further direction contrary to the Central Rules without any authority to issue such direction. In fact, the Rules and Regulations as administrative order can neither be supplemented nor substantiated under any provisions. Finally, she would contend that if at all any instructions to be given, it can be by amendment to the Rule and not by way of circular. 8. It was also argued on behalf of the appellants that contrary to the amendment of the Central Act, Rule 24 (3) included certain specific directions and after amendment, those were specifically omitted, which include administrative area, reception area, sanitary block and therefore, whatever is sought to be deleted by way of an amendment from the original Act framed by the Central Government is now sought to be re-introduced in the form of a circular, which is legally impermissible. 9. The learned Advocate General appearing for the respondents/ Government would point out that Rule 24 of the Central Motor Vehicle Rule deals with driving schools and its establishment in which it is very categorically stated that the licensing authority, for the purpose of Rule 24 to 28, means an officer not below the rank of Regional Transport Officers of Motor Vehicles Department established under Section 213. Under Section 24 (3), the licensing authority, while considering an application for grant of renewal of license under the Rule, has to take into consideration the various specifications given by the Central Government in that regard. In doing so, to have an uniform procedure to be adopted all over the State, the Government has issued the circular dated 31.10.2007 under Rule 426. The learned Advocate General would contend that Section 213 would specifically state that the State Government may, for the purpose of carrying out into effect the provisions of this Act, establish Motor Vehicles Department and appoint officers whereof such person as it thinks fit. Section 213 (3) of the Act empowers the State Government to effectively implement the provisions of the Act. The learned Advocate General, tracing the powers of the respondents to Rule 426 of the Tamil Nadu Motor Vehicles Rules whereby the https://hcservices.ecourts.gov.in/hcservices/ Transport Commissioner is shown as the Head of the Transport Department and the other officers of Transport Department as his subordinates, contend that to exercise power and perform the duties assigned to them from time to time under the Motor Vehicles Act and Rules framed thereunder and notifications thereof it was specifically stated that such officers shall carry out the instructions and orders issued by the Transport Commissioner from time to time. Therefore, as per the provisions, the Rule itself was formulated by the Tamil Nadu Government and the circular issued by the Transport Commissioner, as head of the Transport Department, is valid. Finally, he would argue that in the impugned circular itself, it is clearly stated that the circular is only issued as a modification issued to the earlier circulars and when the earlier circulars have been acted upon or obeyed by the appellants, they cannot now challenge the impugned circular at all by filing the writ petitions. 10. The main contention of the appellants or their grievance was the imposition of conditions in Clause 3.1.3 to 3.1.48 in the circular dated 31.10.2007. In fact, during the course of argument, the main contention urged on behalf of the appellants was that there is no power for the government to issue the circular. Even if there is any power, clause 3.1.2 specifies minimum space of 1000 sq.ft., and a pucca building in the name of the licencee or leased for a minimum period of five years, which is arbitrary. In respect of clause 3.1.3 namely space for office room to an extent of 10 X 10 feet, clause 3.1.4 relating to lecture hall measuring 15 X 10 feet, clause 3.1.6 relating to space for traffic education room having 15 X 10 feet for conducting driving education and clause 3.1.7 relating to parking area and the requirement of 1000 sq.ft., inclusive of parking area would definitely affect the persons from entering into the business of establishing driving school particularly in a city like Chennai where the land value has sky rocketed and is costly to own or even to get a 1000 sq.ft., area on rental basis. 11. The next important clause by which the appellants were worried about was the fixation of the age of the vehicle namely restriction to use a vehicle which is not older than 8 years, which according to the appellants, would affect their legal right to carry on the driving school business. The appellants are also aggrieved by the imposition of condition to furnish solvency certificate to the tune of Rs.3 lakhs. 12. As far as the restriction to use the public road for imparting driving training is concerned, the learned Advocate General, even before the learned single Judge, has given a concession that the driving schools are entitled to use the public road during the learning process after the initial period of training. 13. We have heard the counsel on either side as well as the learned Advocate General at length and perused the material records as well as the order passed by the learned single Judge. 14. The main point argued by appellants is Government has no power to regulate or make any Rules in respect of Driving Schools under the. Before dwelling upon this point in detail, the relevant provisions of the Act and Rules has to be seen which are as follows:- https://hcservices.ecourts.gov.in/hcservices/ Motor Vehicles Act, 1988 "Section 12. Licensing and regulation of schools or establishments for imparting instruction in driving of 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 theforegoing powers, 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 licenses: (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 maintainany 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 to be provided therein; (k) qualifications, both educational and professional (including experience) which a person https://hcservices.ecourts.gov.in/hcservices/ 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 purpose of issuing such certificates; (p) such other matters as may be necessary to carry out the purposes of this section. (3) Where the Central Government is satisfied that it is necessary or expedient so to do, it may, by rules made in this behalf, exempt generally, either absolutely or subject to such conditions as may be specified in the rules, any class ofschools or establishments imparting instruction in driving of motor vehicles or matters connected therewith from the provisions of this section. (4) A school or establishment imparting instruction in driving of motor vehicles or matters connected therewith immediately before the commencement of this Act whether under a licence or not, may continue to impart such instruction without a licence issued under this Act for a period of one month from such commencement, and if it has made an application for such licence under this Act within the said period of one month and such application is in the prescribed fee, till the disposal of such application by the licensing authority. 27. Power of Central Government to make rules.- The Central Government may make rules-- (a) regarding conditions referred to in sub- section (2) of section 3; (b) providing for the form in which the application for learner's licence may be made, the information it shall contain and the documents to be submitted with the application referred to in sub- section (2) of section 8; https://hcservices.ecourts.gov.in/hcservices/ (c) providing for theform of medical certificate referred to in sub-section (3) of section 8: (d) providing for the particulars for the test referred to in sub-section (5) of section 8: (e) providing for the form in which the aplication for driving licence may be made, the information that it shall contain and the documents to be submitted with the application referred to in sub- section (2) of section 9; (f) providing for the particulars regarding test of competence to drive, referred to in sub-section (3) of section 9; (g) specifying the minimum educational qualifications of persons to whom licences to drive transport vehicles may be issued under this Act and the time within which such qualifications are to be acquired by such persons; (h) providing for the form and contents of the licences, referred to in sub-section (1) of section 10: (i) providing for the form and contents of the applications referred to in sub-section (1) of Section 11 and documents to be submitted with the application and the fee to be charged (j) providing for the condigions subject to which section 9 shall apply to an application made under section 11; (k) providing for the form and contents of the application referred to in sub-section (1) of section 15 and the documents to accompany such application under sub-section (2) of section 15; (l) providing for the authority to grant licences under sub-section (1) of section 18; (m) specifying the fees payable under sub-section (2) of section 8, sub-section (2) of section 9 and sub- sections (3) and (4) of section 15 for the grant of learner's licences, and for the grant and renewal of driving licences and licences for the purpose of regulating the schools or establishments for imparting instructions in driving motor vehicles; (n) specifying the acts for the purpose of clause (f) of