(2012) 244 KLR 460 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE TUESDAY, THE 20TH DAY OF MARCH 2012/30TH PHALGUNA 1933 WP(C).No. 16404 of 2009 (U) --------------------------- PETITIONERS: ------------- 1. ALL KERALA DRIVING SCHOOL WORKS ASSOCIATION, REPRESENTED BY ITS CHAIRMAN THOMAS KINATTUKARA, NANTHENCODE THIRUVANANTHAPURAM. 2. NANTHENCODE KUTTAPPAN, STATE PRESIDENT, ALL KERALA DRIVING SCHOOL WORKS ASSOCIATION NANTHENCODE, THIRUVANANTHAPURAM. 3. K.RAVEENDRAN NAIR, GENERAL SECRETARY, ALL KERALA DRIVING SCHOOL WORKS ASSOCIATION NANTHENCODE, THIRUVANANTHAPURAM. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENTS: -------------- 1. UNION OF INDIA, REPRESENTED BY SECRETARY MINISTRY OF SHIPPING, ROAD TRANSPORT & HIGHWAYS NEW DELHI. 2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, MOTOR VEHICLES DEPARTMENT THIRUVANANTHAPURAM. 3. TRANSPORT COMMISSIONER, THIRUVANANTHAPURAM. BY ADVOCATE SRI.P.R.LESLIE STEPHEN BY ADVOCATE GOVERNMENT PLEADER SRI.ABDUL KARIM BY ADVOCATE SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI BY ADVOCATE SRI.P.ALI, ADDL.CGSC BY ADVOCATE SRI.P.PARAMESWARAN NAIR,ASG OF INDIA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.1.2012, THE COURT ON 20-03-2012 DELIVERED THE FOLLOWING: WP(C).No. 16404 of 2009 (U) APPENDIX PETITIONERS' EXHIBITS:
/TRUE COPY/ rka P.S. TO JUDGE A.M.SHAFFIQUE, J. ---------------------------------------------------- W.P.(C) No. 16404 of 2009 - U --------------------------------------------------- Dated this the 20th March, 2012 Head Note:- Motor Vehicle Rules - Driving Licence - Learner's Licence - Whether Motor Vehicles Department is not entitled to collect learner's licence fee from the candidates who had already passed the preliminary test and failed to appear or did not pass in the driving test, when they apply on the second occasion. Held, According to the Government, only a nominal fee of Rs.30/- is charged. No doubt when the validity of the learner's licence is only for six months, a fresh application is required which also requires certain infrastructural expenditure which necessarily has to met by the candidate and it is not possible for the Driving School Association to demand change of fiscal measures of charging such fee. Central Motor Vehicles Rules, 1989 - Rules 10 and 15 - Whether prescribing the minimum period of 30 days for appearing for driving test after taking the learner's licence is irrational, illegal, ultra vires and in violation of Article 14 and 19 of the Constitution of India - Held, a person holding learner's licence for at least a period of 30 days shall be eligible to appear for the test of competence to drive. This is a mandatory provision. So a bare reading of Rule 10 read with Rule 15 clearly indicates that a person holding a valid learner's licence for at least a period of 30 days alone will be entitled to appear for the driving test. Motor Vehicle Rules - Whether instructions given, not to send the driving licence in the address of the agent is bad in law - Held, if a candidate exercises an option for sending the licences to the temporary address, definitely the authorities are bound to permit such a course. The circulars issued in that regard may be suitably amended for incorporating such a process as well. Motor Vehicle Rules - Representation not considered by the Ministry of Shipping, Road Transport & Highways, New Delhi in which they have ventilated their grievances - Held, there is any statutory obligation on the Ministry to consider such representations, hence the petitioner is not entitled for such a relief. J U D G M E N T The first petitioner is an Association of a driving school and petitioners 2 and 3 are its office bearers. Their complaint is that the (1) Motor Vehicles Department is not entitled to collect learner's licence fee from the candidates who had already passed the preliminary test and failed to appear or did not pass in the driving test, when they apply on the second occasion, (2) That Rule 5 of the Central Motor Vehicles Rules, 1989 (hereinafter referred to as the 'Rules') prescribing the minimum period of 30 days for appearing for driving test after taking the learner's licence is irrational, illegal, ultra vires and in violation of Article 14 and 19 of the Constitution of India, (3) That the instructions given in Ext P7 Circular, not to send the driving licence in the address of the agent is bad in law, (4). That their representation Ext.P8 was not considered by the Ministry of Shipping, Road Transport & Highways, New Delhi in which they have ventilated their grievances as narrated above. 2. The petitioner has also produced an additional document along with I.A.No.948/2012. It is a Circular dated 7.12.2011 issued by the Transport Commissioner which indicates that under certain circumstances the documents can be given directly to the applicant. 3. The 3rd respondent has filed a counter affidavit contending that the Circular and directions have been issued only for the sake of public good so as to avoid any hardship created by middlemen and agents. It is contended that as per Rule 15(1) of the Central Motor Vehicle Rules, no person shall appear for the driving test unless he has held a learner's licence for a period of at least 30 days. If any one has to get a fresh motor driving licence, the above rule has to be complied with. It is further stated that the authorities are complying with the requirement as specified in Ext.P1 judgment. It is further contended that as per G.S.R. 276(E) dated 10.4.2007 issued by the Ministry of Shipping, Road Transport and Highways, Government of India had omitted the words "Or renewal" in Rule 10 of the Rules and therefore no learner's licence shall be renewed after its expiry. On the basis of this amendment, Circular No. 11/2007 was issued directing the Licensing Authority and the Assistant Licensing Authority not to collect the fee for issuing driving licence and test of competence again while the applicant appears for learner's licence after its expiry. It is submitted that under Section 14(1) of the Motor Vehicles Act (hereinafter referred as the Act) the effective period of learner's licence is six months though there was a provision earlier for renewal after its expiry on account of amendment, the applicants will have to undergo learner's' test after the expiry of the said period. The Department also supports Rule 15(1) by contending that no person shall appear for driving test unless he has held with learner's licence for a period of at least 30 days and there is no reason for any changes to be made and there is no rationale for the petitioner to challenge the aforesaid rules/provisions of the Act or of the Circulars issued by the Department. 4. Heard the learned counsel for the petitioners and the Government Pleader. 5. Going by the grievance of the petitioners, each item can be considered separately. The first contention is whether the Motor Vehicles Department is entitled to collect learner's licence fee from the candidates who had already passed the preliminary test and failed to appear or did not pass in the driving test, when they apply on the second occasion. According to the Government, only a nominal fee of Rs.30/- is charged. No doubt when the validity of the learner's licence is only for six months, a fresh application is required which also requires certain infrastructural expenditure which necessarily has to met by the candidate and it is not possible for the Driving School Association to demand change of fiscal measures of charging such fee. 6. The second question is whether Rule 5 prescribing the minimum period of 30 days for appearing for driving test after taking the learner's licence is irrational, illegal, ultra vires and in violation of Article 14 and 19 of the Constitution of India. An application for learner's licence is to be submitted in form No.2 as provided under Rule 10 of the Rules. Though the provisions indicated that renewal of learner's licence was possible by virtue of notification No.GSR 276(E) dated 10th April, 2007, the Rules have been amended whereby the word "or renewal" has been deleted from Rule 10, thereby meaning that the provision for renewal of learner's licence has been deleted. Rule 15(1) of the Rules reads as follows: "Driving test:- (1) No person shall appear for the test of competence to drive unless he has a learner's licence for a period of at least thirty days". It definitely indicates that a person holding learner's licence for at least a period of 30 days shall be eligible to appear for the test of competence to drive. This is a mandatory provision. So a bare reading of Rule 10 read with Rule 15 clearly indicates that a person holding a valid learner's licence for at least a period of 30 days alone will be entitled to appear for the driving test. 7. Rule 14 prescribes that an application for a driving licence is to be submitted after obtaining the learner's licence. The application has to be in Form No.4. It is contended that as per serial No.19 of Form No.4 certain category of persons are exempted from preliminary test under Rule 11(2) of the Rules. Rule 11 indicates the parameters for preliminary test and Rule 11(2) is an exception which states as follows: "Nothing contained in sub-rule (1) shall apply to the following class of applicants, (a) xx xx (b) xx xx (c) the holder of a learner's licence issued or renewed after the commencement of these rules". It is therefore the contention that if a person was holding learner's licence, whether time expired or not, he is entitled to apply for obtaining driving licence under Rule 14. Section 14 of the Act provides that a learner's licence issued under the Act shall, subject to the other provisions of the Act be effective for a period of six months from the date of issue of the licence. 8. When the validity of learner's licence is only for a period of six months, the question is whether a fresh learner's licence is required to be taken after the expiry of the aforesaid six months period. A reading of S.14(1) r/w Rule 10 of the Rules indicates two essential facts. (1) That the learner's licence is valid for a period of six months. (2) Only after 30 days from obtaining a learner's licence, could a person appear for competence to drive a motor vehicle. The provisions therefore clearly indicate that the competency to drive the vehicle should be taken while the candidate has the learner's licence. 9. The question mooted is in respect of a person who has already obtained a learner's licence with a validity period of six months and time expired. While getting a fresh learner's licence, should such a person wait for further 30 days to get competence to appear for the driving test. There is no provision in the Act or the Rules which contemplates such a situation. When a strict standard is applied to the provisions, it could be seen that when the learner's licence expires or becomes invalid by the expiry of six months period, necessarily a fresh learner's licence has to be taken which has to be made after complying with the requirements as provided under the Act and Rules. I do not think that the above provisions are in any way arbitrary or unreasonable nor does it violate Article 14 and 19 of the Constitution of India. 10. The next point to be considered is whether the instructions given in Ext P7 Circular, not to send the driving licence in the address of the agent is bad in law. Ext.P8 Circular issued by the Motor Vehicles department directs that the original licence is to be issued by sending the same by registered post to the candidate's residential address. According to the petitioners, they are recognized driving schools and the temporary address of the driving school has been accepted by virtue of a judgment of this Court as evident from Ext.P1. Petitioners submit that once when the learner's licence is issued and the proof of address is verified by production of all the documents as required under Rule 10 and once such verification is complete, there is no necessity to send the licence to the address of the candidates, whereas it could be sent to the temporary address also, so that the candidates who had appeared for the driving test through the Association and who had opted to show their temporary address as that of the driving school will be able to receive their licences immediately. 11. This Court had already held that the address of the school can be shown as temporary address of the candidate and if so once the candidates' documents are verified which indicates the permanent address of the candidate also and necessary documents are received as proof of address, it is not known why the driving licence should not be sent to the temporary address as well. But necessarily the candidate should be given the option to exercise such a right. The question is therefore whether the Association can insist for making such a procedure. This is a matter to be considered by the Department and if there is a method for verification of the actual address of the candidate even at the time when the learner's licence is issued, it is not known as to why the licence should not be issued in the temporary address also. Therefore, if a candidate exercises an option for sending the licences to the temporary address, definitely the authorities are bound to permit such a course. The circulars issued in that regard may be suitably amended for incorporating such a process as well. 12. The last point is whether the representation Ext.P8 requires to be considered by the Ministry of Shipping, Road Transport & Highways, New Delhi. I do note that there is any statutory obligation on the Ministry to consider such representations, hence the petitioner is not entitled for such a relief. Under these circumstances, this writ petition is disposed of with the following directions. (a) The 3rd respondent is directed to consider whether the licence of a candidate can be sent in the temporary address of the candidate at the option of the candidate in the light of the observations in the judgment and if so necessary circulars may be framed in that regard. (b) Other reliefs are rejected. A.M.SHAFFIQUE, JUDGE. rka |
