Madras High Court
P.Kalyani vs The Licensing Authority ... on 1 August, 2023
Writ Petition No.23555 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON :19.09.2023
PRONOUNCED ON :04.10.2023
CORAM
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
Writ Petition No.23555 of 2023
WMP.No.23072 of 2023
P.Kalyani,
Proptx:Lavanya Heavy Driving School,
14/5, Valliyammal Nagar,
Cuddalore,
Cuddalore District.
... Petitioner
Vs
1.The Licensing Authority cum-Regional Transport Officer,
Cuddalore.
2.The Transport Commissioner,
Chepauk, Chennai – 5.
... Respondents
PRAYER : Writ Petition filed Under Article 226 of the Constitution of
India, to issue a writ of Certiorari calling for the records of the 1st
respondent made in Pro.R.No.02/C2/2023, dated 01.08.2023 cancelling the
petitioner's driving school licence and to quash the same.
For Petitioner : Mrs.S.Radha Gopalan
for M/s.K.Hariharan
For Respondents : Mr.R.U.Dinesh Rajkumar
Additional Government Pleader
1/12
https://www.mhc.tn.gov.in/judis
Writ Petition No.23555 of 2023
ORDER
This writ petition is filed challenging the order passed by the 1st
respondent cancelling the licence granted to the petitioner for running a
driving school.
2. The petitioner is running a heavy driving school in
Cuddalore. On 31.05.2023, the Vigilance and Anti Corruption Wing had
conducted a raid in 1st respondent's office and during the trap operation,
unaccounted money was recovered from some persons including the
petitioner's husband viz., Pandian. Therefore, a show cause notice was
issued to the petitioner on 20.07.2023, calling upon the petitioner to explain
why action should not be taken against her for violation of Rule 24(3) (i) of
Central Motor Vehicle Rules and Rule 197 of Tamil Nadu Motor Vehicle
Rules. Not satisfied with explanation offered by the petitioner, the 1st
respondent passed the impugned order revoking the licence granted to the
petitioner for running a heavy driving school. Aggrieved by the same, the
petitioner is before this Court.
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Writ Petition No.23555 of 2023
3. The learned Senior counsel appearing for the petitioner by
taking this Court to Rule 24(3) (i) of Central Motor Vehicle Rules submitted
that the conditions mentioned therein have to be considered only at the time
of considering the application for grant or renewal of the licence and 1 st
respondent ought not to have considered the same for the purpose of
revoking the licence. The learned Senior counsel further submitted that the
other ground mentioned in the impugned order that vehicle used by the
petitioner's driving school for imparting driving skills to students had no
fitness certificate is untenable in law as the vehicle in the name of driving
school cannot be treated as a transport vehicle and consequently requires no
fitness certificate. She further submitted that other provisions referred to in
the impugned order namely Section 192 of Motor Vehicle Act and Rule 117
of Tamil Nadu Motor Vehicle Rules are not relevant for the purpose of
cancellation of licence for driving school. In support of her contention, the
learned counsel relied on the judgment of this Court in State by Public
Prosecutor Vs. Kandaswami and Krishnan reported in 1972 (4) LW
Criminal 71.
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Writ Petition No.23555 of 2023
4. Per contra, Mr.R.U.Dinesh Raj Kumar, learned Additional
Government Pleader appearing for the respondents contended that against
the impugned order passed under Rule 28 of Central Motor Vehicle Rules,
revoking the licence issued to the petitioner, an appeal remedy is available
under Rule 29 and in view of availability of alternative remedy, the writ
petition filed by the petitioner without availing alternative remedy is liable
to be dismissed.
5. The learned Additional Government Pleader by taking this
Court to the counter affidavit filed by the 1st respondent submitted that
during the raid conducted by Vigilance and Anti Corruption Wing in the 1 st
respondent's office, unaccounted money of Rs.76,500/- was seized from the
petitioner's husband one Pandian. It was further submitted that though the
licence for running driving school stands in the name of the petitioner, the
said Pandian has been in actual administration of the school. The recovery
of unaccounted money from Pandian in the raid conducted in first
respondent's office clearly violates Rule 24(3) (i) of Central Motor Vehicle
Rules and therefore, the impugned order passed by the 1st respondent
cancelling the licence is justified. The learned Government Advocate
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Writ Petition No.23555 of 2023
further submitted that the petitioner by using the vehicle whose fitness
certificate was already expired put the life of the students in jeopardy and
hence the licence of the petitioner was revoked by the 1st respondent.
6. In her reply, the learned Senior Counsel appearing for the
petitioner contended that under Rule 28 of Central Motor Vehicle Rules
before passing any adverse order, the 1st respondent is required to offer an
opportunity of hearing to the person concerned. In the case on hand, though
show cause notice was issued to the petitioner and she was given an
opportunity to submit her explanation, no opportunity of personal hearing
was afforded to the petitioner and hence the principles of natural justice are
violated. Since the principles of natural justice are violated, the petitioner is
entitled to invoke the jurisdiction of this Court without availing alternative
remedy. In this regard, the learned Senior counsel relied on the judgment of
this Court in Mahendra and Mahendra Limited Vs The Joint Commissioner
(CT) Appeal, Chennai -6 in Writ Appeal No.493 of 2021.
7. It is not in dispute that in a raid conducted by Vigilance and
Anti Corruption Wing in the 1st respondent's office unaccounted money was
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Writ Petition No.23555 of 2023
recovered from one Pandian, husband of the petitioner. Though it was
contended on behalf of the petitioner said pandian is neither the licence
holder nor the employee of driving school, the fact remains said Pandian is
the husband of the petitioner. In fact, in the preamble portion of the
affidavit, it is clearly mentioned that the petitioner is the wife of Pandian
and in Paragraph No.3 of the affidavit, it is clearly admitted said Pandian is
the husband of the petitioner. However, the petitioner proceeded to raise a
plea that said Pandian is neither the licence holder nor the employee of the
driving school. In the counter affidavit filed by the 1st respondent, it is
specifically averred that though licence stood in the name of the petitioner,
the actual administration of the driving school is being looked after by
husband of the petitioner namely Pandian. Whether, the said Pandian is
actively involved in the administration of the driving school of the
petitioner or not is a disputed question of fact which cannot be gone into
conveniently in writ proceedings. Rule 24(3) (i) of Central Motor Vehicle
Rules, reads as follows:
The licence authority shall, when considering an
application for the grant or renewal of a licence under this Rule, have
regard to the following matters namely :-
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Writ Petition No.23555 of 2023
(i) The applicant and the staff working under him are of good
moral character and are qualified to give driving instructions.
8. Rule 28 of Central Motor Vehicle Rules, reads as follows:
“28. Power of the licensing authority to suspend or revoke licence.—
(1) If the licensing authority which granted the licence is satisfied,
after giving the holder of the licence an opportunity of being heard,
that he has—
(a) failed to comply with the requirements specified in sub-rule (3) of
rule 24; or
(b) failed to maintain the vehicles in which instructions are being
imparted in good condition; or
(c) failed to adhere to the syllabus specified in rule 31 in imparting
instruction; or
(d) violated any other provision of rule 27, it may, for reasons to be
recorded in writing, make an order,—
• suspending the licence for a specified period; or
• revoking the licence.
(2) Where the licence is suspended or revoked under sub-rule (1),
the licence shall be surrendered to the licensing authority by the holder
thereof.”
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Writ Petition No.23555 of 2023
9. A perusal of Rule 28 r/w Rule 24 would make it clear, if a
licence holder failed to comply with requirements specified in Sub
Rule(3) (i) of Rule 24, the licence is liable to be suspended or even revoked
after giving opportunity of hearing to the licence holder.
10. In the case on hand, according to the petitioner, in the raid
conducted by Vigilance and Anti Corruption Wing in the 1st respondent's
office unaccounted money was recovered from husband of the petitioner. It
is also contended, the husband of the petitioner is in ostensible control of
the driving school. When Rule 24(3) (i) mandates the applicant for driving
school and the staff working under him are of good moral character and are
qualified to give driving licence, the same would take within it's sweep the
person in ostensible control of driving school or the agent of the licence
holder. In such circumstances, the contention raised by the learned Senior
counsel for the petitioner, the requirements mentioned under Rule 24(3) (i)
under Central Motor Vehicle Rules can be taken into consideration only at
the time of considering the application for grant or renewal of licence is not
acceptable to this case in view of specific provision under Rule 28(1) (a).
Rule 28 (1) (a) and Rule 24(3) (i) have to be read conjointly. Therefore, the
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Writ Petition No.23555 of 2023
circumstances, mentioned in the show cause notice clearly attract the above
said provisions. However, in her reply, the petitioner has not offered any
plausible explanation regarding recovery of unaccounted money from her
husband. The question whether Pandian is in ostensible control of the
driving school or not is disputed question of fact which cannot be gone into
conveniently in writ proceedings. As contended by the learned Additional
Government Pleader appearing for the respondents, against the order
revoking the licence under Rule 28 of Central Motor Vehicle Rules, an
appeal shall lie under Rule 29 before the head of the Motor Vehicle's
Department. Had the petitioner availed the appeal remedy, the said
authority could have gone into the question of disputed facts.
11. Rule 28 of Central Motor Vehicle Rules only says the licence can
be suspended or revoked after giving the holder of licence an opportunity of
being heard. It does not say, the holder of licence shall be afforded with
opportunity of personal hearing. In the case on hand, admittedly, before
passing impugned order, a show cause notice was issued to the petitioner
and she has also submitted an explanation. In such circumstances, the
principles of natural justice enshrined in Statutory Rule is complied with. In
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Writ Petition No.23555 of 2023
the absence of a specific provision requiring opportunity of personal
hearing, the failure to afford an opportunity of personal hearing cannot be
treated as violation of principles of natural justice. Therefore, the
contention raised by the learned Senior counsel appearing for the petitioner
for maintaining the writ petition without availing alternative remedy of
appeal is not acceptable to this Court. Therefore, this Court holds that
principles of natural justice are not violated in the present case.
12. In view of the discussions made earlier, this Court comes to a
conclusion that the present writ petition is not maintainable in view of
availability of alternative remedy of appeal under Rule 29 of Central Motor
Vehicle Rules. The petitioner is entitled to raise all the points raised in the
writ petition before the Appellate Authority by filing an appeal under Rule
29. It is needless to say, the petitioner is entitled to exclude the time taken
before this Court in prosecuting this writ petition namely date of filing of
writ petition (09.08.2023 to the date of receipt of copy of this order) while
computing the limitation for filing appeal before the Appellate Authority.
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Writ Petition No.23555 of 2023
13. With this observation, this Writ Petition stands dismissed. . No
costs. Consequently, connected miscellaneous petition is closed.
Note: Registry is directed to return the original of the
impugned order to the counsel for the petitioner.
.
04.10.2023
Index : Yes/No
Speaking order:Yes/No
Neutral citation:Yes/No
ub
https://www.mhc.tn.gov.in/judis
Writ Petition No.23555 of 2023
S.SOUNTHAR, J.
ub
To
1.The Licensing Authority cum-Regional Transport Officer,
Cuddalore.
2.The Transport Commissioner,
Chepauk, Chennai – 5.
Writ Petition No.23555 of 2023
04.10.2023
https://www.mhc.tn.gov.in/judis
