Madras High Court
Tvl.Meenambakkam Driving School vs The Secretary on 23 June, 2008
Equivalent citations: AIR 2008 (NOC) 2626 (MAD.), 2008 (6) AKAR (NOC) 1046 (MAD.)
Author: S. Manikumar
Bench: S.Manikumar
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 licensing authority;
(h) exhibit in a conspicuous manner on all the motor vehicles used for imparting instructions the name, full address of the school or establishment and the telephone number, if any, in bold letters;
(i) maintain a record separately for each trainee showing the number of driving hours spent every day in Form 15;
(j) display at a prominent place in its office the following:-
(i) the licence in original issued to the school or establishment by the licensing authority, and
(ii) the names and addresses of instructors employed by the school or establishment;
(k) not act in a manner calculated to mislead any person making an application to receive instructions from the school or establishment as to his ability to procure a licence for such person other than in accordance with these rules or to connive with any person in acts of commission or omission with a view to circumventing the provisions of this Chapter."
19. The syllabus for imparting instructions for driving a Motor Vehicle is provided under Rule 31 of the said Rules. As per Rule 10, a person who wants to obtain Learner's Licence for driving/riding a vehicle, shall make an application in Form-2, along with (a) Medical Certificate in Form 1-A, (b) three copies of his recent passport size photograph, (c) appropriate fee as specified in Rule 32 and (d) in the case of an application for transport vehicle, the driving licence held by him.
20. Rule 11 of the said Rules deals with the preliminary test and the said rule reads as follows:
"(1) Save as otherwise provided in sub-rule (2), every applicant for a learner's licence shall present himself before the licensing authority on such date, place and time, as the licensing authority may appoint, for a test and satisfy such authority that the applicant possesses adequate knowledge and understanding of the following matters namely:-
(a) the traffic signs, traffic signals and the rules of the road regulations made under Section 118;
(b) the duties of a driver when his vehicle is involved in an accident resulting in the death or bodily injury of a person or damage to property of a third party;
(c ) the precautions to be taken while passing an unmanned railway crossing; and
(d) the documents he should carry with him while driving a motor vehicle.
(1-A) In determining as to whether an applicant possesses adequate knowledge and understanding of the matters referred to in sub-rule (1), the licensing authority shall put to the applicant questions of objective type such as specified in Annexure-VI.
21. Rules 14 and 15 deal with submission of application for driving licence and the driving test for regular licence respectively. Rule 24 enables the licensing authority to grant licence for establishment of a Driving School for imparting instructions for hire or reward driving motor vehicles as per Form-11. Chapter V of the Tamil Nadu Motor Vehicles Rules, 1989 deals with the powers of the transport authority, delegation of the powers to Inspecting Officers and Motor Vehicle Transport (Non-Technical), powers of the State Transport Authority and his powers to delegate, grant of permits to various classes of vehicle, such as public service vehicle, goods carriage vehicle and transport vehicle, application for replacement of vehicle, suspension and cancellation of the permits for violation of the condition of permits, booking, forwarding and distributing of goods, provisions for stopping the vehicle, fees to be charged under the provisions of the above chapter, etc.
22. Rule 137 of the Tamil Nadu Motor Vehicles Rules reads as follows:
"Service of communications:- (1) Any communication issued by the Transport Authorities or the Executive Officers of such authorities or by the Government or by the Tribunal in respect of matters falling under this chapter may be served by the Executive Officers of the Transport Authorities or any other officer authorised by them in this behalf, by any one of the following methods, namely-
(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:
Provided that if upon an attempt having been made to serve the communication by any of the above mentioned methods, the serving officer is satisfied that the addressee is avoiding service or that for any other reason, the communication cannot be served by any of the above mentioned methods the Executive Officer of the Transport Authority concerned shall order the service of the communication by affixing a copy thereof on some conspicuous part of addressee's last place of business or garage as notified by him or where the addressee habitually resides and such service shall be as valid as if the addressee had acknowledged in writing.
(2) When the serving officer delivers or tenders a copy of the communication to the addressee personally or to his agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to and acknowledgment of a service endorsed on the original communication and such person shal comply with such requirement."
23. A reading of the Rules in Chapter 5, which deal with the control of Transport Vehicles, do not indicate that the members of the driving school have any statutory right to receive any communication issued by the Transport Authorities or Executive Officers of such authorities or by the Government or by the Tribunal in matters relating to the licence applicable to any class of vehicle. The authorisation to receive the communication is confined only to the matters falling under Chapter 5 of the Tamil Nadu Motor Vehicles Rules and not otherwise.
24. The purpose of the circular issued by the Transport Commissioner is to regulate the functions of the Regional Transport Officers in the State of Tamil Nadu. Preamble to the impugned circular reads that about 5,000 applications are received daily from College Students/Office goers, in the Regional Transport Office across the State for obtaining driving licence and it is increasing day by day. There is a general impression that the applicants have to avail leave, taking into consideration the time taken in the Transport Offices. To avoid this, some of the applicants approach touts/outsiders to obtain licence. Therefore, it is the responsibility of the department to reduce the time taken for issuing licences and also to improve the working capacity of the respective officers. With the above intention, the Transport Commissioner, Chennai, has issued above circulars with following instructions, (1) the receptionist shall maintain a register, in which, the name of the applicant, date, purpose of visiting the office, time of arrival, etc are to be noted. The receptionist shall also enter the token number, receive the licence/documents and obtain the signature of the applicant.
(2) In respect of general public, who visit the Office, separate Registers shall be maintained, in which, details of those persons, who visit the office and the purpose of their visit have to be mentioned. The Regional Transport Officers have to verify the registers daily and affix their signatures. The office of the Joint Commissioner and other offices have to take proper steps to maintain the registers in their respective offices from 9.30 a.m., onwards.
(3) Where there are large number of applicants/general public visiting the office, it is advisable to maintain separate registers for those who have applied for Learner's Licence, Driving Licence, Renewal, Permits and for other purposes, so that, the congestion in the office could be avoided and that it would be convenient to the general public also. Those applicants, who visit the offices, shall be given tokens to meet the concerned officers. By this process, intrusion of touts, outsiders, can be prevented in the office of the Transport Department. By the impugned circulars, the Regional Transport Officers, P.As., to Regional Transport Authorities and the Superintendent are also instructed to verify and ensure the applicant/general public has necessary tokens to enter the office. On inspection, if it is found that a tout or an outsider has entered the office premises without necessary tokens, it is the responsibility of the Regional Transport Officer to inform the nearby Police Station to take appropriate criminal action against the tout/outsider.
25. By the impugned circulars, a detailed procedure has been set out for submission of applications for Learner's Licence, payment of necessary fees, procedure for conduct of test etc., As per Clause 1 of the said instructions, a separate payment counter has been installed in all the Regional Transport Offices so as to enable the applicants/Learner's to pay the necessary fee. The said counter should start functioning from 9.30 a.m., onwards. Only after verifying as to whether the applicant has the necessary token, the cashier should receive the payment. On receipt of the fee from the applicant/learner, a receipt should be issued promptly and Personal Assistants to the Regional Transport Officers should conduct periodical inspection at the counters and it is the one of their primary responsibility. Clause 5 reads imposes a condition that fees received from many applicants/learners should not be permitted to be remitted by a single individual at any cost. Further, action has to be taken against touts/outsiders, who attempt to remit the fees on behalf of many applicants. On payment of necessary fees, the Regional Transport Officer/P.A., to the Regional Transport Officer/Superintendent shall instruct the applicant/learner to proceed to the room, where the test is conducted. Thereafter, the applicant/learner, is tested for his knowledge, in matters relating to traffic signs, traffic signals, rules of the road regulations, precautions to be taken, duties of the driver etc., as provided in Rule 11 of the Central Motor Vehicles Rules.
26. The instructions further read that details of the tests have to be furnished to the applicants/learners in separate groups for 15 minutes, so as to avoid, delay and congestion in the transport offices and that the whole process for issuing learner's licence should not be more than 30 minutes from remitting the prescribed fee for obtaining the Learner's Licence.
27. Rules 24 to 31 of the Central Motor Vehicles Rules, deal with the issue of licence to the driving schools, duration of licence and renewal thereof, issue of duplicate licence, general conditions to be observed by the owners of the driving schools, power of the licencing authority to suspend or revoke licence, procedure for filing an appeal, syllabus for imparting instructions in driving of Motor Vehicles. Rule 32 of the said Rules deals with the amount of fees to be charged and it does not state as to how it has to be paid. Therefore, as rightly contended by the respondents, as per Chapter 2 of the Tamil Nadu Motor Vehicle Rules, which deals with the licencing of drivers of Motor Vehicles, the Head of the Department is competent to issue to administrative instructions in the form of circulars to regulate the functioning of the Deputy Commissioners/Regional Transport Officers/Motor Vehicles Inspector for smooth and efficient functioning of the Department, with an object of eliminating touts/outsiders inside the office premises.
28. Rule 430 of the Tamil Nadu Motor Vehicles Rules, deals with the mode of despatch of documents and it reads as follows:
"Driving Licence, Conductor Licence, Registeration Certificate, Permit or any other documents shall be handed over to the applicant concerned in person under proper acknowledgment.
The applicant may also authorise any person, who is not a tout, to receive such documents on his behalf, subject to production of an authorisation letter with court fee stamp to the value of Rs.2 affixed.
Explanation:- For the purpose of this rules, "Tout" means a person who arranges to get the things done in the offices of the Transport Department on behalf of public for monetary consideration.
Any person desirous of getting such documents by Registered Post with acknowledgment due may enclose along with the application a self addressed envelope sufficiently stamped."
29. Reading of the rules makes it clear that the documents such as Driving licence, Conductors licence, registration certificate, permit or any other document can be received by person, who is not a tout, subject to the production of an authorisation letter by the applicant with Court fee stamps to the value of Rs.2/- affixed. This rule also does not authorise the members of the petitioner's association to remit necessary fees on behalf of the trainees. A conjoint reading of Rule 137 of the Tamil Nadu Motor Vehicle Rules, which enables the authorised agent to receive the communications from the respective officers mentioned therein in respect of matters falling under Chapter V with Rule 430 of the Tamil Nadu Motor Vehicle Rules, which enables the authorised agent to receive documents such as Driving Licence, Conductor Licence, Registration Certificate, Permit or any other documents, do not indicate that the Driving Schools and establishments are authorised to remit necessary fees along with the application for obtaining the learner's licence on behalf of the applicants.
30. It is evident that the intention and the object of issuing the impugned circular is only to simplify the procedure for payment of necessary fees, avoid intrusion of touts/outsiders in the offices of Regional Transport Offices, improve the image of the department in the mind of the general public, streamline the functioning of the Regional Transport Officers, etc and above all, to avoid delay in the Office.
31. In the unreported judgment in W.P.No.13121 of 1997, dated 24th September, 1997, relied on by the learned counsel for the petitioner, The Tamil Nadu Pokkuvarathu Aalosagargal Samelanam, the petitioner therein, challenged a impugned circular of the Transport Commissioner cum State Transport Authority, Chennai, by which, the said Authority imposed a condition that the authorisation letter given by the holder of the permit shall specifically mention the relationship of the agent with the holder of the permit and as per the circular, only the applicant's relatives or the servants alone can be appointed as authorised agents and that one person cannot come and submit many applications in a day, by which, one can presumably come to the conclusion that such a person is either a tout or an agent. Though the intention of the Government in issuing the above said circular, was to restrict the touts or agents, as they commercialized the practice, for pecuniary benefits, this Court, having regard to the fact that the owners of the transport vehicles come from different places cannot engage only their relatives or servants, observed that they cannot be expected to be out of their Station and stay for a long time and under such circumstances, held that to insist that the owner shall authorise only his servant or relative, will be amount to a prohibition on the owner engaging any other person. This Court further held that this amounts to putting the owner in great disadvantage and at the same time, preventing the members of the petitioners-Samelanam from doing their lawful business. This Court further observed that under the guise of preventing touts, the instructions given by the Transport Commissioner cum State Transport Authority has even prevented the bona fide persons from doing the business transaction. The said judgment would be applicable to the facts of that particular case. The same yardstick cannot be applied to the present case also, where specific instructions have been issued to regulate the issuance of Learner's Licence. As stated supra, each of the applicants, who apply for Learner's Licence/Driving Licence/Renewal has to appear in person and submit the applications along with the prescribed fee and that they are asked to undergo a prescribed test, as provided under Rule 11 of the Central Motor Vehicles Rules.
32. It is further evident from the Circular No.32/06, dated 08.09.1996, issued by the Transport Commissioner cum State Transport Authority that during inspection, it was found that one of the representatives of the Driving School had attempted to obtain 20 driving licences by remitting the fees. In the circular instructions, dated 08.09.2006, the Regional Transport Officers have been instructed to strictly adhere to the procedure set out for issuance of licences and to discharge their duties without causing any inconvenience to the general public. It is further stated that violation of the procedure or failure to follow the instructions, would entail severe disciplinary action against the erring officers. A reading of both circulars makes it clear that the administrative instructions issued by the Transport Commissioner cum State Transport Authority are only in the form of regulatory measures for the reasons stated supra and it does not in any way affect the rights of the members of the petitioner's association.
33. No proceedings have been brought to the notice of this Court, enabling the driving schools to remit the fees on behalf of the learners, who apply for licence. The functioning of the driving schools/establishments are only to impart instructions in driving of Motor Vehicles or matters connected there with, as provided in Rules 24 to 31 of the Central Motor Vehicle Rules, 1989. As the right to conduct trade or business of the members of the petitioner's association are circumscribed to the limited extent, as provided under the Central Motor Vehicle Rules and they cannot claim that they have either a statutory or fundamental right to remit the Learner's licence fee and submit the applications on behalf of the trainees. Hitherto, the members of the petitioner's association might have been permitted to make payment on behalf of the learners, but the practice followed in the transport offices would not confer them any legal right to be enforced against the respondents, who are competent to regulate or streamline the functions of the offices in the transport department. As power to issue executive instructions is traceable to the provisions of the Motor Vehicles Act and the rules framed thereunder, there is no constitutionality in the circulars nor do they infringe any statutory or fundamental rights of the members of the petitioner's association and that they have no locus standi to question the competence of the respondents.
34. The circular/instructions makes it clear that the instructions are intended to have a uniform procedure throughout the State to prevent touts or outsiders from entering the Regional Transport Offices without valid reasons and excepting the applicant, who applies for such licence, nobody is allowed to make payment. As the Head of the department, the second respondent is competent to issue executive instructions, taking into consideration the various factors, stated supra and by Writ of Mandamus, the exercise of their statutory functions cannot be curtailed. A mandamus can be issued only if the petitioner is able to substantiate his rights under the statute and if there is a failure on the part of the respondents to perform their statutory functions.
35. For the reasons stated, I am unable to accept the contention that there is failure on the part of the respondents or their subordinate Officers in exercise of their jurisdiction under the provisions of the Motor Vehicles Act. In the result, the petitioner has not made out any case of issuance of a Writ as prayed for and therefore, the Writ Petition is dismissed. No costs.
23.06.2008 skm To
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.
S. MANIKUMAR, J.
skm W.P.No.38675 of 2006 23.06.2008