State of Tamil Nadu v. The State of Tamilnadu

2.The Transport Commissioner, Transport Department, Chepauk, Chennai-5. ..RespondentsW.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 ..Petitionervs1.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 2008Tvl.Chennai Vadaku Perambur PaguthiDriving School Urimaiyalar Nala Sangam,No.93, S.R.P.Koil Street, Paravallur,Chennai-82 rep.by its PresidentMr.S.C.Janardhanan ..Petitionervs1.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 EdwinDriving School,KandarvilagamVaniyakudi Post,Colachel,Kanyakumari District ..PetitionerVs.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. ..RespondentsW.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.Sundareswaran2. C.V.Sundareswaran ..PetitionersVs.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 ..RespondentsWP.No.2447 of 2008:Nagai District Driving School ownersAssociation rep.by its PresidentMr.V.Ramaswamy8/30 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. ..RespondentsWP.No.5539 of 2008:Thiruvarur District Driving School ownersWelfare Association rep. by itsSecretary 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 SchoolsOwner's Federation,No.4,Second Floor,12th Street, Nanganallur,Chennai - 61. rep. by itsPresident Mr.S.Shanmugam...Petitionervs.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. ..RespondentsWP.No.14540 of 2009:S.Shanmuga Velayutham..PetitionerVs.1. The Principal Secretary cum Transport Commissioner, Chepauk, Chennai - 5.2. The Licensing Authority cum Regional Transport Officer, Coimbatore South, Coimbatore...RespondentsThe writ petitions are filed under Article 226 of theConstitution of India, praying for the issue of a Writs ofCertiorari, (1) calling for the records relating to the CircularNo.43/2007 issued by the second respondent in letterNo.R.No.51018/H1/07 dated 31.10.2007 and quash the same (inWP.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 1strespondent pertaining to Letter R.NO.51018/H1/07 dated 31.10.2007(Circular No.43/2007) and quash the same and consequently direct therespondents to grant fresh licenses and renew existing licenses formembers of the Petitioner Sangam on in accordance with law and inconformity 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 CentralGovernment under Section 12 of the Motor Vehicles Act 1988 (inW.P.No.37377/07)(3) mandamus, directing the 2nd respondent herein to consider andpass order on the petitioner's application, dated 2.8.2005 forestablishment 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 RThese writ petitions have been filed either by the Association ofowners of Driving Schools or by the owners of Driving Schools,challenging a Circular issued by the Transport Commissioner on31.10.2007, revising the guidelines for licensing and regulatingdriving schools or establishments imparting instruction in driving ofmotor vehicles. 2. I have heard Mr.N.Gopalakrishnan, Mr.S.Ganesh, Mr.R.Natesan,learned counsel appearing for some of the petitioners andMr.M.S.Krishnan and Mrs.Nalini Chidambaram, learned Senior Counselappearing for some of the writ petitioners and Mr.P.S.Raman, learnedAdvocate 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 thesecond respondent herein, directed all the Licensing Authorities totake into account the matters enlisted in paragraph 3.1.1 to 3.1.48thereunder while considering the applications for the grant oflicences to establish driving schools. Aggrieved by some and not allof the matters incorporated therein, the petitioners have come upwith these writ petitions. The conditions about which the petitionersare aggrieved, are as follows:-"3.1.2 Building, Infrastructure andamenitiesThe premises of the schools, should havefire proof pucca building either owned by thelicensee 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 asto have enough space for providing all therequirements stipulated below, subject to thecondition that one of the measurements eitherlengthwise or breadthwise shall not be lessthan 20 feet and it shall be insisted upon inall the schools intending to impart drivingtraining in 'motor cycle' and 'light motorvehicles'. Such space can either be availablewholly on the ground floor or in the groundfloor and first floor, if the driving schoolhas such an arrangement. Additionally aminimum space of 560 sq. ft., and 420 sq.ft., for a heavy passenger motor vehicle andheavy goods vehicle school respectively shallalso be provided.3.1.3 Space for Office RoomAn office room of size 10' x 10' shallbe provided for reception, maintainingrecords, keeping the collection of books onautomobile engineering, mechanisms, trafficregulations, road safety and laws relating tomotor vehicles and allied subjects.3.1.4 Space for Lecture HallMinimum space for at least one lecturehall shall be of measurement 15' x 10' so asto provide suitable accommodation comprisingtwo benches and two tables for every 10candidates at a time. Additional tables andbenches shall also be provided where thestrength exceeds 10 students at a time.3.1.5 Space for Demonstration HallAdequate Space measuring not less than15' x 10' for demonstration of models (suchas engine, gear box, brake shoe and drums,puncture kit with tyre lever, wheel brace,jack and tyre pressure gauge, spanners and aservice chart depicting a detailed view ofall the components of a motor vehicle etc.,shall also be provided. The above modelsshall have to be placed on a work bench. https://hcservices.ecourts.gov.in/hcservices/

3.1.6 Space for Traffic Education RoomA room of a minimum size 15' x 10' forconducting traffic education for provision ofroad plan board, traffic signs chart, charton automatic signals and signals given bytraffic controllers where there are noautomatic signals, etc., shall have to beprovided.3.1.7 Parking AreaAdequate parking area within thepremises of the school to accommodate thevehicles in which instructions are impartedshall have to be provided as detailed below:-(i) One Motor Cycle and one Light MotorVehicle 350 Sq. Feet; and(ii) An additional space at the rate 560Sq. Feet for Heavy Passenger Motor Vehicleand 420 Sq. Feet for Heavy Goods Vehicle.3.1.8 Basic AmenitiesThe school premises shall have to haveall basic amenities such as drinking water,toilet facility, rest rooms etc.3.1.10 Financial ResourcesSolvency certificate to an amount of notless than Rs.3 lakh shall have to beproduced.3.1.11 Maintenance of VehiclesApplicant/driving schools shall own aminimum of one vehicle of latest model (notolder than 8 years at any point of time) ineach category. The vehicles except motorcycle shall be fitted with dual controlfacility to enable the instructor to controlor stop the vehicle in which training isimparted. The driving school vehicles usedfor imparting instructions to the candidates,on any account, shall not be used for otherpurposes and shall here to have a board https://hcservices.ecourts.gov.in/hcservices/ prominently displaying the words "for driverstraining" both in English and Tamil.3.1.45 Age and Mechanical ConditionEvery licensee shall maintain thevehicles used by him for imparting trainingto the candidates in a mechanically fitcondition and at no point of time the age ofsuch vehicle shall be more than 8 years fromthe date of its initial registration.3.1.48 Ban on using public roadAt present, generally the public roadsare being utilized for imparting drivingtraining by the driving schools. Instead ofthis, a suitable ground/area shall beidentified and utilized for the same by thelicensee considering the road safety aspect."4. Paragraph-8 of the said Circular contained an instruction toall the licensing authorities to direct the existing driving schoolsto 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, havecome 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 beenforced. Paragraph 3.1.10 imposes an obligation upon the drivingschools to obtain solvency certificates for an amount of not lessthan Rs.3 lakhs. The learned Advocate General submitted that inrespect of existing driving schools, such solvency certificates wouldnot be insisted upon. Similarly, paragraph 3.1.48 prohibits the useof public roads for imparting training and the learned AdvocateGeneral fairly conceded that it would go against the very object ofthe circular to produce skillful drivers. Training in driving may notbe complete unless the skill is tested on a public road. Moreover,this cannot be a condition precedent for the grant of a license. Itis a condition, even if found necessary, cannot be enforced beforethe issue of a licence for establishing a driving school. It may beopen to the respondents to stipulate that the initial stages oftraining should be imparted only in an open area/ ground. But thefinal stage of training or at least the testing of the driving skillsof a person, may have to be on a public road. Therefore the learnedAdvocate General submitted that these paragraphs of the impugnedcircular would be suitably modified. https://hcservices.ecourts.gov.in/hcservices/

6. Therefore the area of dispute has now narrowed down to (i) theprescription regarding buildings, infrastructure and amenities and(ii) the age and maintenance of the vehicles used by these drivingschools. 7. Mr.N.Gopalakrishnan, learned counsel for the petitionercontended--- (a) that Section 12(1) of the Motor Vehicles Act, 1988,empowers only the Central Government to make rules for the purpose oflicensing and regulating the schools imparting instruction in drivingof motor vehicles and hence neither the State Government nor theTransport Commissioner has any power to issue directions in thisregard; (b) that the Central Government has actually framed theCentral Motor Vehicles Rules, 1989, Rule 24 of which deals withdriving schools and the procedure for grant of licences and hence theState Government and the Transport Commissioner have no jurisdictionto 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 VehiclesRules fix the age of a vehicle for which tourist permit and NationalPermit are granted respectively, and Rule 169A(5) of the Tamil NaduMotor Vehicles Rules fixes the age of a vehicle used as Tourist Caband hence the fixation of the age of the vehicle as 8 years under theimpugned Circular is ultra vires the rules. The learned counsel forthe petitioner relied upon an unreported decision of R.JayasimhaBabu, J., in M/s.Salem District Driving School Owner's Associationvs. The State Transport Authority {W.P.No.2162 of 1995 dated15.2.1995}.8. Mr.S.Ganesh, learned counsel for some of the petitionerscontended that the power to frame rules regulating the grant oflicences to driving schools is reserved only to the CentralGovernment and that therefore the Transport Commissioner has no powerto issue any direction without the authority of the law. He alsocontended that the reliance placed by the respondents in theircounter affidavits, upon Section 68(3)(d) and 68(4) of the MotorVehicles Act, 1988, to justify the impugned Circular, is ill-founded,since these provisions do not deal with driving schools. The learnedcounsel also drew my attention to Rules 24 to 32 of the Central MotorVehicles Rules, 1989, and contended that the entire subject oflicensing of driving schools is covered by the Central Rules. Thelearned counsel relied upon the decisions of the Supreme Court inSubhash vs. State of Maharashtra {1995 Supp (3) SCC 332}, LaxmanDundappa Dhamanekar vs. Management of Vishwa Bharata Seva Samiti{2001 (8) SCC 378} and Ashok Lanka vs. Rishi Dixit {AIR 2005 SC2821}, in support of his contention that Rules cannot be annulled ormodified or replaced by executive instructions. The learned counselalso relied upon the decision in Parameshwar Prasad vs. Union ofIndia {2002 (1) SCC 145}, in support of his contention that it isonly the authorities who are competent under the Rules, that areactually empowered to issue Circulars to fill up the gaps. https://hcservices.ecourts.gov.in/hcservices/

9. Mrs.Nalini Chidambaram, learned Senior Counsel for thepetitioner contended that since Entry 35 in the concurrent list ofthe Seventh Schedule to the Constitution deals with the subject andalso since the Parliament has enacted the Motor Vehicles Act, 1988,it is an occupied field. Therefore so long as the legislature of theState had not made any law, which has received the assent of thePresident, the impugned Circular issued by the Transport Commissionerwould be unconstitutional. According to the learned Senior Counsel,Rule 24 of the Central Motor Vehicles Rules also occupies the fieldand hence neither the State nor the Transport Commissioner iscompetent to issue any directions of the kind issued under theimpugned Circular.10. Mr.M.S.Krishnan, learned Senior Counsel for thepetitioner contended that the Motor Vehicles Act, 1988, is dividedinto several Chapters dealing with different subjects. Each Chaptercontains separate provisions empowering either the Central Governmentor the State Government or both to make rules. For instance, ChapterII deals with licensing of motor vehicles. While Section 27 empowersthe Central Government to make rules regarding the matters describedin Clauses (a) to (q), Section 28 empowers the State Government toframe rules in respect of matters enlisted in Clauses (a) to (k) ofsub-section (2) of Section 28. In Chapter III dealing with licensingof Conductors of stage carriages, the State Government alone isconferred with the power to frame rules under Section 38. In ChapterIV dealing with registration of vehicles, the Central Government isempowered under Section 64 and the State Government is empoweredunder Section 65 to make rules. Similarly Chapter VII and ChapterVIII empower the Central Government as well as the State Governmentto frame rules. But Chapter V, Chapter VI and Chapter XII containprovisions empowering the State Government alone to frame rules. Therule making power under Chapter IX and Chapter XI is confined only tothe Central Government. Therefore, according to the learned SeniorCounsel, it is the scheme of the Motor Vehicles Act, 1988 that inrespect of matters which require uniformity of standards throughoutthe country, it is the Central Government which is empowered to framerules. Since the issue of licensing of driving schools is a matterrequiring uniformity, the Central Government alone, according to thelearned Senior Counsel, has power to frame rules. The learned SeniorCounsel also brought to my attention the provisions of Rule 24(3)(ii)of the Central Motor Vehicles Rules, 1989 as it stood before itsamendment. It reads as follows:-"24. (3)(ii) The premises where theschool or establishment is proposed to beconducted is either owned by the applicant oris taken on lease by him or is hired in hisname and it has adequate provision for alecture hall, room for demonstration ofmodels, administrative section, reception room https://hcservices.ecourts.gov.in/hcservices/ and sanitary block besides adequate parkingarea for the vehicles meant to be used forimparting instructions in driving"However, the said Rule was amended, after which it reads as follows:-"24. (3)(ii) The premises where theschool or establishment is proposed tobeconducted is either owned by the applicantor is taken on lease by him or is hired inhis name and it has adequate provision forconducting lecture and demonstration ofmodels besides adequate parking area for thevehicles meant to be used for impartinginstructions in driving"A comparison of the above rule, both before and after amendment,would show that the requirement to have adequate provision for alecture hall, a room for demonstration, administrative section,reception room etc., were deleted. When these requirements have beendeleted from the statutory rules, by way of amendment, it is not opento the Transport Commissioner, according to the learned SeniorCounsel for the petitioner, to reintroduce the same by way ofexecutive instructions. The learned Senior Counsel also relied uponSection 59 of the Act, which prescribes the age of the vehicle andcontended that the fixation of age by the Transport Commissioner,amounted to overreaching the provisions of the Act. Contending thatby executive instructions, statutory rules and provisions, cannot besupplanted, Mr.M.S.Krishnan, learned Senior Counsel for thepetitioner cited the following decisions:-(i) Mannalal Jain vs. State of Assam {AIR 1962 SC 386}.(ii) The State of Maharashtra vs. Chandrakant Anant Kulkarni {AIR1981 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 BharataSeva 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, learnedAdvocate General contended that a licensing authority is definedunder Section 2(20) of the Act and that he is vested with certainpowers under the Act. Therefore any Circular issued for the purposeof laying down an objective criteria for licensing driving schools,cannot be construed as overriding the provisions of the Act or theRules. The prescription in the Circular regarding the space requiredfor locating the office of a driving school, is to improve thequality of training imparted. The fixation of the age of the vehicleas 8 years, according to the learned Advocate General, is for thepurpose of ensuring that training is imparted in new generationvehicles. The learned Advocate General also relied upon two decisionsof the Kerala High Court viz., (i) Krishnamoorthy vs. TransportCommissioner, decided on 10.7.2002 and (ii) Sebastian vs. State ofKerala, decided on 17.5.2005. The learned Advocate General alsobrought to my notice the fact that under Rule 426 of the Tamil NaduMotor Vehicles Rules, 1989, the Transport Commissioner is nominatedas the head of the Transport Department for the purpose of Section213 of the Act and hence he is empowered to issue instructions.12. I have carefully considered the rival submissions. Allthe submissions of the learned counsel and the learned Senior Counselappearing for the petitioners revolve primarily around the competenceand power of the Transport Commissioner to issue such a Circular, inthe light of statutory provisions and the Rules. It is the core themeof the song of the petitioners that in the scheme of the Act, it isthe Central Government which is empowered to frame rules in respectof these matters. 13. To see if the above contention is justified, let us nowtake a look at the relevant provisions. Section 12 of the MotorVehicles Act, 1988 reads as follows:-"12. Licensing and regulation of schoolsor establishments for imparting instructionin driving motor vehicles. - (1) The CentralGovernment may make rules for the purpose oflicensing and regulating, by the StateGovernments, schools or establishments (bywhatever name called) for impartinginstruction in driving of motor vehicles andmatters connected therewith.(2) In particular and without prejudiceto the generality of the foregoing power,such rules may provide for all or any of thefollowing matters, namely:- https://hcservices.ecourts.gov.in/hcservices/ (a) licensing of such schools orestablishments including grant, renewal andrevocation of such licences;(b) supervision of such schools orestablishments;(c) the form of application and the formof licence and the particulars to becontained therein;(d) fee to be paid with the applicationfor such licences;(e) conditions subject to which suchlicences may be granted;(f) appeals against the orders ofrefusal to grant or renew such licences andappeals against the orders revoking suchlicences;(g) conditions subject to which a personmay establish and maintain any such school orestablishment for imparting instruction indriving of motor vehicles;(h) nature, syllabus and duration ofcourse or courses for efficient instructionin driving any motor vehicle;(i) apparatus and equipments (includingmotor vehicles fitted with dual control)required for the purpose of imparting suchinstructions;(j) suitability of the premises at whichsuch schools or establishments may beestablished or maintained and facilities tobeprovided therein;(k) qualifications, both educational andprofessional (including experience), which aperson imparting instruction in driving amotor vehicle shall possess;(l) inspection of such schools andestablishments (including the servicesrendered by them and the apparatus, https://hcservices.ecourts.gov.in/hcservices/ equipments and motor vehicles maintained bythem for imparting such instruction);(m) maintenance of records by suchschools or establishments;(n) financial stability of such schoolsor establishments;(o) the driving certificates, if any, tobe issued by such schools or establishmentsand the form in which such certificates shallbe issued and the requirements to be compliedwith for the purposes of issuing suchcertificates;(p) such other matters as may benecessary to carry out the purposes of thissection."14. Section 12 as well as Sections 27 and 28, as rightlycontended by Mr.M.S.Krishnan, learned Senior Counsel, are in ChapterII of the Act, which deals with "Licensing of Drivers of MotorVehicles". Though Section 12(1) itself specifically empowers theCentral Government to make rules for the purpose of licensing andregulating driving schools and Section 12 (2) enlists the matters inrespect of which provision could be made in those rules, Section 27also confers power upon the Central Government to frame rules withregard to the matters dealt with by Sections 3(2), 8(2), 8(3), 8(5),9(2), 9(3), 10(1), 11(1), 15(1), 15(2), 18(1), 19(1), 24(2) and 26(1). Section 28(1) empowers the State Government to make rules, forthe purpose of carrying into effect the provisions of Chapter II, inrespect of matters other than those covered by Section 27. 15. The cumulative effect of Sections 12, 27 and 28 is thatthe power to frame rules with regard to the licensing and regulatingof driving schools, vests only with the Central Government. To thisextent, the contention of the petitioners is correct. 16. The power conferred by Section 12 has also beenexercised by the Central Government, by issuing "The Central MotorVehicles Rules, 1989". The preamble to the said Rules, issued inG.S.R. 590(E) dated 2nd June 1989, makes it clear that those Ruleswere issued in exercise of the power conferred by Section 12, apartfrom the power conferred by other Sections. Therefore, the CentralGovernment has exercised the rule making power conferred underSection 12. 17. Rules 24 to 32 in Chapter II of these Rules, deal with"Driving Schools and Establishments". While Rule 24 deals with the https://hcservices.ecourts.gov.in/hcservices/ licensing of driving schools in Form 11, the matters to be consideredby the licensing authority while granting or renewing a licence andthe procedure prescribed for the grant of licence, Rule 25 deals withduration of the licence and its renewal. Rule 26 deals with the issueof duplicate licence. Rule 27 specifies the general conditions to beobserved by the holder of a licence. Rule 28 empowers the licensingauthority to suspend or revoke the licence. Rule 29 provides for anappeal and Rule 30 prescribes the procedure for dealing with anappeal. Rule 31 contains the syllabus for imparting training and Rule32 prescribes the fees to be charged.18. There could be no quarrel with the proposition that norule can be issued by the State Government and no Circular orexecutive instruction can be issued by any authority, which tends tooverride or overreach or be in conflict with any of the above Rules.In this background, now let us take a look at Rule 24 (3) and (4) ofthe Central Motor Vehicles Rules, 1989. "(3) The licensing authority shall, whenconsidering an application for the grant orrenewal of a licence under this rule, haveregard to the following matters, namely:-(i) The applicant and the staff workingunder him are of good moral character andare qualified to give driving instructions.(ii) The premises where the school orestablishment is proposed to be conducted iseither owned by the applicant or is taken onlease by him or is hired in his name and ithas adequate provision for (conductinglecture and demonstration of models) besidesadequate parking area for the vehicles meantto be used for imparting instructions indriving:Provided that in respect of schools orestablishments imparting instructions indriving of motor vehicles or mattersconnected therewith immediately before thecommencement of these rules, the licensingauthority may permit the conducting ofinstruction facilities in the same premiseswhere the school or establishment is housedfor a period of six months, notwithstandingthe fact that the premises do not satisfyconditions laid down in this clause. https://hcservices.ecourts.gov.in/hcservices/ (iii) The financial resources of theproposed school or establishment aresufficient to provide for its continuedmaintenance.(iv) The applicant owns and maintains aminimum of one motor vehicle each of thetype in which instruction is imparted in theschool or establishment.(v) The vehicles are availableexclusively for purposes of impartinginstruction and all such vehicles, exceptmotor cycles, are fitted with dual controlfacility to enable the instructor to controlor stop the vehicle;(vi) The applicant maintains thefollowing apparatus, equipments and otherrequirements, namely:-(a) a blackboard;(b) a road plan board with necessarymodel signals and charts;(c) traffic signs chart;(d) chart on automatic signals andsignals given by traffic controllers wherethere are no automatic signals;(e) a service chart depicting adetailed view of all the components of amotor vehicle;(f) engine gear box, brake shoe anddrums (except where the applicant desires toimpart instruction in the driving of motorcycles only);(g) puncture kit with tyre lever, wheelbrace, jack and tyre-pressure gauge;(h) spanners (a set each of fixspanners, box spanners, pliers, screwdrivers, screw spanners and hammer);(i) driving instructions manual; https://hcservices.ecourts.gov.in/hcservices/ (j) benches and tables for trainees andwork-bench;(k) {* * *}(l) {* * *}(m) a collection of books on automobilemechanism, driving, road safety, trafficregulations, laws relating to motor vehiclesand related subjects;(n) a fully equipped first-aid box foruse in emergency at the premises;(vii) {* * *}(viii) The applicant or any member ofthe member of the staff employed by him forimparting instructions possesses thefollowing qualifications, namely:-(a) a minimum educational qualificationof a pass in the 10th Standard;(b) a minimum driving experience offive years in addition to a certificate in acourse in motor mechanics or any otherhigher qualification in mechanicalengineering from an institution establishedby the Central or a State Government or froman institution recognised by the Board ofTechnical Education of a State Government;(c) thorough knowledge of traffic signsspecified in the Schedule to the Act and theregulations made under Section 118.(d) ability to demonstrate and toexplain the functions of differentcomponents, parts of the vehicles;(e) adequate knowledge of English orthe regional language of the region in whichthe school or establishment is situated:Provided that any person who has servedas an instructor for a period of not lessthan 5 years immediately before the https://hcservices.ecourts.gov.in/hcservices/ commencement of these rules, is exemptedfrom the requirements of this sub-clause.(4) The licensing authority may, onreceipt of an application under sub-clause(2) and after satisfying that the applicanthas complied with the requirements of sub-rule (3), grant or renew a licence in Form11."19. Rather than prescribing a set of full fledged norms orstandards, Rule 24(3) merely lists out the matters to be taken intoaccount by the licensing authority, while considering an applicationfor the grant or renewal of a licence. In respect of certain matters,Rule 24(3) prescribes the minimum requirement. In respect of certainmatters, the Rule gives only an indication of what may be required.In respect of many of the matters, the Rule confers a discretion uponthe licensing authority to adopt such norms and standards, as wouldsubserve the scheme of the Act and the Rules. For instance, Rule 24(3)(iv) mandates that the person applying for licence owns andmaintains at least one vehicle, each of the type in which instructionis imparted. Rule 24(3)(v) mandates such vehicles to be fitted withdual control facility and such vehicles to be available exclusivelyfor imparting training. Rule 24(3)(vi) gives a list of apparatus andequipments to be maintained. Rule 24(3)(viii) fixes thequalifications. No discretion is conferred upon the licensingauthority to dilute any of these standards, which are specificallyprescribed. 20. But in respect of matters covered by clauses (i), (ii)and (iii) of sub Rule (3) of Rule 24, an element of discretion isconferred upon the licensing authority. For instance, clause (i)requires the licensing authority to ensure that the applicant and thestaff working under him are of good moral character and are qualifiedto give driving instructions. The Rule does not prescribe anystandards of good moral character. Therefore, the determination ofwhat constitutes good moral character, based upon socially acceptednorms, is left to the discretion (and character) of the licensingauthority. Similarly, clause (iii) of sub rule (3) requires thelicensing authority to ensure that the financial resources of theapplicant are sufficient to provide for its continued maintenance. Noparameters are fixed under the Rule to determine the sufficiency orotherwise of the financial resources of an applicant. Therefore, thedetermination of the sufficiency of financial resources, is left bythe rules to the discretion of the licensing authority. On the samelines, clause (ii) of sub rule (3) of Rule 24 requires the licensingauthority to ensure that the premises where the driving school isproposed to be conducted, is either owned or taken on lease by theapplicant and that it has adequate provision for conducting lectureand demonstration, besides parking area. While the requirement to own https://hcservices.ecourts.gov.in/hcservices/ or have on lease, a premises, is indispensable and does not dependupon the discretionary power of the licensing authority, the questionas to whether such premises has "adequate provision", is left by Rule24(3)(ii) to the discretion of the licensing authority. 21. Therefore, it is clear that Rule 24(3) fixes the broadframe, within which a licensing authority is to act. It prescribesvery broad and essential standards in respect of certain matters andleaves the other matters to the discretion of the licensingauthority. An elbow space is provided to the licensing authority,under Rule 24(3). In other words, Rule 24(3) does not provide a merecheck list for a mechanical verification by the licensing authority.The licensing authority is not reduced by Rule 24(3) to a mere robot.In respect of matters for which standards are clearly fixed, he hasno discretion. But in respect of other matters, the licensingauthority has an element of discretion. 22.Once the scheme of Rule 24(3) is understood on the abovelines, the fallacy of the contention of the petitioners that theTransport Commissioner has no power to prescribe any standards, wouldbe clear. In exercise of the power conferred by Section 12 (1) and 12(2), it was open to the Central Government to frame rules prescribingclear and rigid standards and norms. If the Central Government haddone so, the area would have become an occupied field, into which,neither the State Government nor the Transport Commissioner would beable to encroach. If the Central Government had fixed clear standardsand left nothing to the discretion of the licensing authority, thenthe licensing authority would have had no power to issue executiveinstructions or Circulars, overreaching or overriding the standardsso fixed. However, the Central Government, as seen from the scheme ofRule 24(3), has not fixed all the norms and standards, but left somearea unoccupied by the Rules, to enable the licensing authorities tofill them up. If a licensing authority acts within the space soprovided, he could not be taken to have overridden the provisions ofthe Act and the Rules. 23. A licensing authority is defined under Section 2(20) ofthe Act, to mean an authority empowered to issue licences underChapter II or III, as the case may be. Section 28(2)(a) of the Act,empowers the State Government to make rules, which may, among otherthings, provide for "the appointment, the jurisdiction, control andfunctions of licensing authorities and other prescribed authorities".In exercise of the power so conferred, the State Government hadissued "The Tamil Nadu Motor Vehicles Rules, 1989". Rule 4 of thesaid Rule names the Regional Transport Officer or the AdditionalRegional Transport Officer as the licensing authority for the issueof driving licences. The very same Officers are named as licensingauthorities even for the issue of conductor licences under Rule 50 ofthe Tamil Nadu Rules. The "Explanation" under sub rule (2) of Rule 24indicates that for the purpose of Rules 24 to 28 of the Central Motor https://hcservices.ecourts.gov.in/hcservices/ Vehicles Rules, 1989, a licensing authority would mean an Officer notbelow the rank of Regional Transport Officer of the Motor VehiclesDepartment established under Section 213. 24. Therefore, it is clear that the Regional TransportOfficer of the area concerned, is the licensing authority, empoweredunder Rule 24(1) of the Central Rules to grant or renew a licence forrunning a driving school. These Regional Transport Officers areadministratively subordinate to the Transport Commissioner, who isnamed under Rule 426 of the Tamil Nadu Motor Vehicles Rules 1989, asthe head of the Transport Department, for the purpose of Section 213,Rule 426 of the Tamil Nadu Rules reads as follows:-"426. Transport Department Officers. -For the purpose of Section 213, the TransportCommissioner shall be the Head of theTransport Department, the Joint TransportCommissioner, the Deputy TransportCommissioners and Secretary and AssistantSecretaries to the State Transport Authority,the Departmental Representative, theStatistical Officer, the Assistant Engineer(Motor Vehicles), the Senior Accounts Officerand Junior Accounts Officers, the RegionalTransport Authorities and their Secretaries,the Regional Transport Officers, the Officersfunctioning as licensing and RegisteringAuthorities, the Motor Vehicles Inspectors,Grade I and Grade II, Motor VehiclesInspectors (Non-Technical), PersonalAssistant to State Transport Authority andPersonal Assistant to Regional TransportOfficers and Superintendents and all otherofficers who may, from time to time beappointed for the purpose of the said sectionshall be officers of the Transport Departmentand shall exercise the powers and perform theduties assigned to them from time to timeunder the Act and the rules made and thenotifications issued thereunder. They shallcarry out the instruction and orders issuedby the Transport Commissioner from time totime."25. Therefore a combined reading of Sections 12(2), 27, 28and 213 of the Act, together with Rules 24(1), 24(2), the Explanationunder Rule 24(2) and Rule 24(3) of the Central Motor Vehicles Rulesas well as Rule 426 of the Tamil Nadu Motor Vehicles Rules, makesclear the following things:- https://hcservices.ecourts.gov.in/hcservices/ (a) that by virtue of Section 12(1), it is the Central Governmentwhich is empowered to frame rules for the purpose of licensing andregulating driving schools and such rules may provide for any or allof the matters listed in Section 12(2);(b) that the Central Government has exercised its power underSection 12(1) by issuing the Central Motor Vehicles Rules, 1989, andprescribing under Rule 24(3) thereto, the norms and standards to besatisfied for the grant or renewal of licence for a driving school;(c) that Rule 24(3) operates in certain aspects, as a completeCode in itself, in so far as certain norms and standards areconcerned and it operates in certain other aspects, only as a ruleconferring an element of discretion and an elbow space for thelicensing authority to fix norms and standards in respect of thoseother aspects;(d) that -- - the requirement to own or have on lease a premises, havingadequate provision for conducting lecture and demonstration, besidesadequate parking area, - the requirement to own and maintain a minimum of one vehicleeach of the type in which instruction is imparted, - the requirement to have those vehicles fitted with dual controlfacility and to make available those vehicles exclusively forimparting training,- the requirement to maintain the apparatus and equipments listedin clause (vi),- the requirement for the Instructor to possess thequalifications prescribed in clause (vii),are all norms and standards specified by Rule 24(3) itself and hencethe licensing authority or any other authority (including theTransport Commissioner) would have no jurisdiction to tamper withthese requirements.(e) that the requirement to ensure the applicant and the staffworking under him to be of good moral character, the determination ofwhat constitutes "adequate provision" while approving the premisesfor the school, the determination of the sufficiency or otherwise ofthe financial resources of the applicant, etc., are all matters whichare left by Rule 24(3) to the best of judgment or discretion of thelicensing authority. https://hcservices.ecourts.gov.in/hcservices/

26. Consequently, even in the absence of a Circular by theTransport Commissioner (such as the one impugned in these writpetitions), the licensing authorities are within their powers, toreject an application for the grant or renewal of a licence to run adriving school, if the reasons for such rejection, fall within thearea in respect of which an element of discretion is conferred onthem. To put it differently, by Rule 24(3), the licensing authoritiesare conferred with the powers to determine by themselves, thestandards to be fixed in respect of (i) good moral character (ii) thearea of office space and (iii) financial resources. Therefore, if alicensing authority rejects an application on the ground that theapplicant has resources only to the tune of Rs.20,000/- or on theground that the applicant was not of good moral character or on theground that the premises in which the school is located, is verysmall, the licensing authority cannot be accused of exercising ajurisdiction or power not vested in him, though there is always ascope to accuse him of arbitrary exercise of such power. 27. Once it is found that the licensing authorities areconferred with such discretion, under the very Rules framed by theCentral Government, it becomes necessary, for the head of theDepartment to ensure that such discretion is exercised by all thelicensing authorities functioning under his administrative control,in an uniform manner. Otherwise, it is possible for one licensingauthority at Madurai to reject an application on the ground that theapplicant has financial resources only to the extent of Rs.20,000/-and another licensing authority at Coimbatore to reject anapplication on the ground that the applicant before him has financialresources only to the extent of Rs.50,000/-. 28. It is only with a view to avoid arbitrary exercise ofpower by the licensing authorities and to ensure uniformity ofstandards throughout the State, that the Transport Commissioner, asthe head of the Department, had issued the Circular impugned in thesewrit petitions. That he is authorised to issue such instructions, isborne out by the last part of Rule 426 of the Tamil Nadu MotorVehicles Rules 1989. As pointed out earlier, the Circular issued bythe Transport Commissioner covers only those areas which are leftunoccupied by Rule 24(3) of the Central Motor Vehicles Rules 1989. Aplain reading of Rule 24(3) makes it clear that it occupies the fieldonly in respect of certain matters such as (i) ownership andmaintenance of minimum of one vehicle (ii) availability of dualcontrol facility in the vehicle (iii) the availability of the vehicleexclusively for training (iv) the availability of certain apparatusand equipments and (v) the qualifications essential for a personapplying for driving school licence. The other matters are not onlyleft unoccupied by Rule 24(3), but also left specifically reserved tothe discretionary power of the licensing authorities. Therefore, theentire fulcrum of the case of the petitioners, as though byexecutive instructions, statutory provisions have been overridden and https://hcservices.ecourts.gov.in/hcservices/ as though there is repugnancy and as though the TransportCommissioner has encroached into a territory occupied by or reservedto be occupied by the Central Government, is totally fallacious.29. All the decisions relied upon by Mr.S.Ganesh, learnedcounsel and Mr.M.S.Krishnan, learned Senior Counsel for thepetitioners, are for the proposition that executive instructionscannot override express provisions of the Statute or statutory rules.The proposition has now become too fundamental, to be supported byany authority. These decisions would be applicable only if theTransport Commissioner has issued instructions which run contrary tothe requirements prescribed by the Rules framed by the CentralGovernment. As stated earlier, the Circular issued by the TransportCommissioner, is just for the purpose of ensuring uniformity ofstandards and avoidance of arbitrary exercise of power by thelicensing authorities, on whom the Rules framed by the CentralGovernment confer a discretion. Therefore the main contention of thepetitioners had to fall to the ground. 30. The contention raised by Mr.M.S.Krishnan, learned SeniorCounsel for the petitioners, on the basis of the amendment broughtforth to Rule 24(3)(ii), does not also advance the case of thepetitioners. Rule 24(3)(ii) as it stood before and as it standsafter, the amendment, has been extracted in paragraph-10 above.Before amendment, the first part of Rule 24(3)(ii) necessitated thatthe premises where the school was proposed to be conducted should beeither owned or taken on lease or on hire. There is no change to thispart of the Rule even after amendment. In the second part of theRule, there was a requirement, before amendment, that the premisesshould have adequate provision for a lecture hall, room fordemonstration, administrative section, reception room and sanitaryblock besides adequate parking area. After amendment, the second partof the Rule mandates that the premises should have adequate provisionfor conducting lecture and demonstration of models besides adequateparking area. The only change brought about by the amendment to thesecond part of Rule 24(3)(ii) is the deletion of compartmentalisationof the premises where the school is proposed to be located. Still,the Rule retains the discretionary power conferred upon the licensingauthority, to decide what would be "adequate provision". Therefore,the contention that what was deleted by the Central Government fromthe statutory Rules, has been reintroduced by way of a Circular bythe Transport Commissioner, holds no water. So long as the statutoryRules issued by the Central Government do not specify that thepremises should be located in a place measuring 200 sq. ft., or 300sq. ft., or 500 sq. ft., but merely directs the licensing authorityto ensure that the premises have "adequate provision", any directionissued by the Transport Commissioner to the licensing authorities toachieve uniformity of standards or objectivity of criteria, cannot befound fault with. https://hcservices.ecourts.gov.in/hcservices/

31. Interestingly, all the licensing authorities in theState, were only following similar directions issued by the TransportCommissioner, with regard to all these matters, even before theimpugned Circular was issued. By the impugned Circular, the TransportCommissioner has merely replaced an existing Circular. The Circularwhich was earlier in force, was never challenged by thesepetitioners, on the ground that the Transport Commissioner had nopower or competence or on the ground that there was repugnancy. Thepetitioners applied for and obtained licences and also had themrenewed, only after satisfying the standards prescribed in theprevious Circulars, issued by the very same Transport Commissioner.Having acted in accordance with those earlier Circulars, issued bythe very same authority, it may not be open to the petitioners toquestion his authority, merely because the standards now fixed arenot acceptable to them. 32. Now coming to the challenge to the fixation of the ageof the vehicle as 8 years under the impugned Circular, it is seenthat the petitioners challenge the same on the basis of theprovisions contained in certain Rules. Section 59(1) of the Act,empowers the Central Government to specify the life of a motorvehicle, having due regard to public safety, convenience and theobjects of the Act. Rule 82(2) of the Central Motor Vehicles Rules,makes a tourist permit invalid, the moment a motor cab completes 9years and any other vehicle completes 8 years. Rule 88 fixes the agelimit in respect of a goods carriage, other than multiaxle vehicle,as 12 years and in respect of multiaxle vehicle as 15 years, for thepurpose of grant of national permit. Similarly, Rule 169A(5) of theTamil Nadu Motor Vehicle Rules fixes the age of an indigenous vehicleas 7 years and an imported vehicle as 10 years, if the vehicle iscovered by a permit. 33. Thus, it is seen that different age limits areprescribed by the Central and State Rules for different purposes.None of the Rules, framed either by the Central Government or by theState Government, contain a prescription with regard to the age limitof the vehicle that could be used in a driving school for impartingtraining. Rule 24(3)(iv) and 24(3)(v) of the Central Motor VehiclesRules, merely prescribe (i) that the applicant should own andmaintain a minimum of one motor vehicle each of the type in whichinstruction is imparted (ii) that the vehicles are used exclusivelyfor imparting training and (iii) that all such vehicles except motorcycles, are fitted with dual control facility. Clauses (iv) and (v)of sub Rule (3) of Rule 24, do not deal with the age limit. It isthis gap which is now sought to be filled up by the TransportCommissioner, by prescribing that the age of the vehicle shall not bemore than 8 years. Therefore, the prescription cannot be taken to beultra vires the Central or State Rules. As a matter of fact, thereis certainly a rationale behind such fixation, since even themanufacturers of automobiles withdraw old models and introduce new https://hcservices.ecourts.gov.in/hcservices/ ones, once in 3/5 years. A lot of innovation and improvement is madein the models, partly for the purpose of pumping the market with newvehicles and partly for the purpose of enhancing safety and comfort(or luxury). Therefore, the contention with regard to the fixation ofage and maintenance of the vehicles, cannot also be accepted.34. As I have observed earlier, the learned Advocate Generalhas fairly conceded that in respect of existing schools, therequirement under paragraph 3.1.10 of the impugned Circular, toprovide a Solvency Certificate for Rs.3 lakhs would not be insistedupon. He has also conceded that the ban on the use of public roadunder paragraph 3.1.48 would also not be enforced, except to thelimited extent that the initial stages of training should be only inan open ground. The challenge of the petitioners to the otherrequirements viz., (i) to have a premises measuring 1,000 sq. ft.,and (ii) to have a vehicle not older than 8 years, is not wellfounded. Therefore, the writ petitions are liable to be dismissed. 35. However, it is seen from paragraph 8 of the impugnedCircular that the existing schools were granted six months time tohave in place, the requirements prescribed under the Circular. Thepetitioners were in enjoyment of interim orders, pending the writpetitions. Therefore, I am of the view that the petitioners may bejustified in seeking extension of time to comply with therequirements. 36.Therefore, in view of the above, all the writ petitionsare dismissed. However, the petitioners are granted liberty toapproach the Transport Commissioner for extension of time to complywith the requirements prescribed under the impugned Circular and theTransport Commissioner may consider any such request,sympathetically. There will be no order as to costs. Consequently allthe miscellaneous petitions are also dismissed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarSvnTo1. The Secretary to Government, Transport Department, Fort St. George, Chennai-600 009. https://hcservices.ecourts.gov.in/hcservices/

2. The Special Commissioner and Transport Commissioner, Transport Department, Chepauk, Chennai-600 005.3. The Secretary to Government, Home (Transport) Department, Fort St. George, Chennai-9.4. The Licensing Authority -cum- Regional Transport Officer, Dharmapuri.5. The Licensing Authority -cum- Regional Transport Officer, Salem.6. The Regional Transport Officer, Regional Transport Office, Krishnagiri.7. The Regional Transport Officer, Regional Transport Office, Dharmapuri.8. The Licensing Authority -cum- Regional Transport Officer, Chennai North, Vysarpadi, Chennai-39.9. The Licensing Authority -cum- Regional Transport Officer, Chennai East, Chennai-12.10. The Deputy Transport Commissioner, Regional Transport Office, Balasundaram Road, Coimbatore - 641 018.11. The Principal Secretary -cum- Transport Commissioner, Chepauk, Chennai-5. https://hcservices.ecourts.gov.in/hcservices/

12. The Licensing Authority -cum- Regional Transport Officer, Coimbatore South, Coimbatore.+ 2 c.cs. to Mr. S. Ganesh, Advocate. S.R.No.57081.+ 5 c.cs. to Mr. N. Gopalakrishnan, Advocate. SR.Nos.57226 & 57066.+ 1 c.c. to Mr. R. Natesan, Advocate. S.R.No.57130.+ 1 c.c. to Ms. C. Uma, Advocate. S.R.No.57184.+ 1 c.c. to M/s. Sarvabhauman Associates. S.R.No.57305.+ 1 c.c. to The Government Pleader. S.R.No.57434. 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 and conncted M.Ps.CKN (CO)GSK/PMK/EM 30.10.2009.