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2015 DIGILAW 1678 (DEL)

Gurjinder Singh v. Government of NCT of Delhi

2015-09-15

MANMOHAN

body2015
JUDGMENT : CM Appl. 19785/2015 (for amendment) in W.P. © 8675/2015 Present application has been filed for amendment of the writ petition. Keeping in view the averments in the application as well as the fact that the matter is at the initial stage, the same is allowed, subject to just exceptions and without prejudice to the rights of the respondents to take all their pleas and defences in the counter affidavit. The amended writ petition is taken on record. W.P. © 8675/2015 & CM Appl. 19026/2015 W.P. © 8755/2015 W.P. © 8109/2015 Present writ petitions have been filed challenging the new guidelines dated 06th August, 2015 as amended on 02nd September, 2015 for grant of fresh licence and/or renewal of licence for Motor Driving Training School as well as for immediate issuance of Motor Training School Licence. Learned counsel for petitioners submit that the impugned guidelines are unconstitutional and illegal. They further submit that respondents have no power either under Section 12 of the Motor Vehicles Act 1988 [hereinafter referred to as “Act, 1988”] or under Rule 24 of the Central Motor Vehicles Rules 1989 [hereinafter referred to as “Rules, 1989”] to issue the impugned guidelines. They submit that the condition that no individual applicant or member of the society or Director of a company should be a family member or immediate sibling of any current employee of the Transport Department, is violative of Articles 14 and 19(1)(g) of the Constitution of India. Learned counsel for petitioners further submit that the condition of a Solvency Certificate of a minimum of Rs. 10 lacs is inequitable and illegal. They also contend that the applications filed by the petitioners have to be processed in accordance with the Act, Rules and Guidelines prevalent on the date they had filed their applications or at the highest in accordance with the changes that came about within ninety days of the applications having been filed as stipulated in Rule 24(4) of Rules, 1989. Learned counsel for petitioners point out that while the petitioner in W.P. © 8675/2015 applied for licence on 04th April, 2013, the petitioner in W.P. © 8755/2015 had applied for licence on 01st April, 2014. They lastly submit that the condition that existing driving schools are required to comply with the impugned guidelines within a period of six months, is illegal. Mr. Satyakam and Mr. They lastly submit that the condition that existing driving schools are required to comply with the impugned guidelines within a period of six months, is illegal. Mr. Satyakam and Mr. Naushad Ahmed Khan, learned counsel appearing for respondent-GNCT of Delhi submit that the respondents have the power and jurisdiction to issue the guidelines. They draw this Court’s attention to Rule 24(3) of the Central Motor Vehicle Rules 1989 to submit that the Licensing Authorities are conferred with the power to determine the standards to be fixed in respect of financial resources as well as the area of office space. Learned counsel for respondent-GNCT of Delhi point out that a similar circular was upheld by the Madras High Court in the case of Tamil Nadu Driving Schools Owners Federation v. State of Tamil Nadu & Anr., W.P. No. 35479/2007 decided on 28th October, 2009. They point out that the judgment of the learned Single Judge was upheld by the Division Bench in Tvl. South India Driving Schools Owners Federation v. The State of Tamil Nadu & Anr., Writ Appeal No. 613/2010 vide judgment and order dated 28th July, 2010. Issue notice. Mr. Satyakam, Mr. Varun Nischal and Mr. Naushad Ahmed Khan, learned counsel accept notice on behalf of respondent-GNCT of Delhi. They pray for and are permitted to file their counter affidavits within a period of six weeks. Rejoinder affidavit, if any, be filed before the next date of hearing. List the matter on 28th January, 2016. Having heard the learned counsel for parties, this Court is of the prima facie view that the condition that a member of the society or an individual applicant or a Director of a Company cannot be a family member of any current employee of the Transport Department violates the Fundamental Right of that family member or immediate sibling to practise any profession, or to carry on any occupation, trade or business. In every civilized society, there is a presumption of innocence of every individual till proven guilty. If the impugned condition imposed by the respondent is accepted, then tomorrow a condition could be imposed that family members of employees of Transport Department shall not be granted a driving licence as there is a possibility that it may have been procured through influence! If the impugned condition imposed by the respondent is accepted, then tomorrow a condition could be imposed that family members of employees of Transport Department shall not be granted a driving licence as there is a possibility that it may have been procured through influence! Prima facie this Court is also of the view that the said condition is violative of Articles 14 and 19(1)(g) of the Constitution of India. It is pertinent to mention that such a condition was not imposed by the State of Tamil Nadu and was not adjudicated upon by the Madras High Court in the judgments referred to and relied upon by the respondents. Consequently, till further orders, the condition that member of the society or an individual or a Director of a company cannot be a family member or an immediate sibling of any current employee of the Transport Department, is stayed. As far as the insistence of Solvency Certificate of Rs. 10 lacs is concerned, this Court is prima facie of the view that it seems to be unduly harsh and excessive. During the course of hearing, it has transpired that there are approximately only fifty licensed Motor Driving Training Schools and if such a condition is upheld, this Court is of the view that it may lead to closure of quite a few of them. It is pertinent to mention that in the Tamil Nadu Driving Schools Owners Federation (supra) case, the State Government had insisted for a Solvency Certificate of only Rs. 3 lacs and that too, was given up for existing schools during the course of arguments. Consequently, at this prima facie stage, this Court directs that the respondents shall only insist on a Solvency Certificate of Rs. 3 lacs and not Rs. 10 lacs. This Court is further of the view that on account of respondents’ failure to process the applications filed by the petitioners for grant of a licence, the petitioners cannot be penalised. While in W.P. © 8675/2015 there has been delay of more than two years in processing the application of the petitioner, in W.P. © 8755/2015 there has been a delay of more than a year. This is despite the fact that Rule 24(4) stipulates that a Licensing Authority shall grant a renewal certificate within a period of ninety days from the date of receipt of such application. This is despite the fact that Rule 24(4) stipulates that a Licensing Authority shall grant a renewal certificate within a period of ninety days from the date of receipt of such application. Accordingly, this Court directs that the applications filed by the petitioners in W.P. © 8675/2015 and W.P. © 8755/2015 shall be processed in accordance with the Act, Rules and Policy Guidelines as were prevalent within ninety days of the filing of applications. As far as the condition that those who have already obtained licences should obtain renewal within six months is concerned, this Court is of the prima facie view that the terms of a licence cannot be varied to someone’s disadvantage during the validity of the licence. In fact, if the condition is allowed to operate, it would also amount to giving retrospective effect to the impugned guidelines. Consequently, till further orders, the said condition in paragraph (K) of the impugned guidelines is stayed. It is made clear at the cost of repetition that other than the aforesaid, this Court has not stayed the General Policy Guidelines issued by the respondents.