Madras High Court
Raja Heavy Driving School vs The Additional Chief Secretary/ on 23 September, 2024
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
W.P.No.1337 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.09.2024
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
W.P.No.1337 of 2021
and W.M.P.Nos.1502 & 1503 of 2021
Raja Heavy Driving School
Rep. by its Proprietor,
S.Shanmugham,
29-A, 6th Cross Street,
Anna Nagar,
Chengalpattu – 603 001. ...Petitioner
-Vs-
1. The Additional Chief Secretary/
Transport Commissioner,
Chepauk,
Chennai – 600 005.
2. The Licensing Authority,
Regional Transport Office,
Chengalpattu. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus, calling for the
records of the impugned order of the second respondent in Memo
No.6285/A3/2020 dated Nil.02.2020 and the consequential order of the
first respondent in R.No.107888/HB1/2020 dated 21.11.2020 and to
quash the same and further to direct the respondents to grant the renewal
to the petitioner driving school.
https://www.mhc.tn.gov.in/judis
Page 1 of 18
W.P.No.1337 of 2021
For Petitioner : Mr.M.Palani
For Respondents : Mr.C.Kathiravan
Special Government Pleader
ORDER
This writ petition has been filed challenging the order
passed by the first respondent dated 21.11.2020, thereby dismissed the
appeal filed by the petitioner and confirmed the order passed by the
second respondent dated 19.02.2020, thereby rejected the application
submitted for renewal of license of the petitioner's driving school.
2. The petitioner was originally granted license by the
licensing authority viz., the second respondent herein under the
provisions of Motor Vehicles Act and Central Motor Vehicles Rules. The
license shall be valid for the period of five year and it can be renewed by
the second respondent for the further period of five years. Accordingly,
the petitioner's license was renewed from time to time. After final
renewal, the license was expired on 23.03.2020. In order to renew the
license, the petitioner ought to have submitted the application for
renewal of license within a period of 60 days prior to the expiry of the
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license. However, the petitioner submitted application for renewal of his
license with delay of 22 days in submission of the application. Therefore,
only on that ground the second respondent rejected the application for
renewal of his license. Aggrieved by the same, the petitioner preferred an
appeal before the first respondent. The first respondent also dismissed
the appeal by an order dated 21.11.2020 on different terms. Hence, the
petitioner filed the present writ petition.
3. The learned counsel appearing for the petitioner raised two
grounds. The first one is that, the renewal application submitted under
Rule 25 of the Central Motor Vehicles Rules, 1989 has to be made before
the licensing authority not less than sixty days before the date of expiry
of the license. However, it does not provide any expressed clause to
condone the delay in filing the application for renewal of license. When
there is no expressed clause to condone the delay, Section 5 of the
Limitation Act would apply. Therefore, the first respondent ought to
have returned the application to file the condone delay petition for filing
the application for renewal of license.
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3.1. He raised another ground that the appellate authority viz.,
the first respondent herein dismissed the appeal on completely different
ground, that too on the instruction from the Additional Chief Secretary,
Home (Tr.II) Department, letter dated 19.03.2020, in pursuance to the
report of an investigating agency on the surprise check conducted on
24.10.2019. The licensing authority only has power to cancel or
suspending the license. No other party has power to cancel the license. In
support of his contention, he relied upon several judgments of this Court
and the Hon'ble Supreme Court of India.
4. The second respondent filed counter and the learned Special
Government Pleader appearing for the respondents submitted that there
is no rule to condone the delay for filing the application for renewal of
license of driving school. Further admittedly the petitioner submitted
application for renewal of license of his driving school with delay of 22
days. Therefore, the second respondent rightly rejected the application
for renewal of license. While confirming the order passed by the second
respondent, the first respondent stated the reason that in view of the
instructions issued by the Additional Chief Secretary to Government,
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Home department, to cancel the petitioner's license and therefore
dismissed the appeal filed by the petitioner by confirming the order
passed by the second respondent.
5. Heard the learned counsel appearing on either side and
perused the materials placed before this Court.
6. Admittedly the petitioner submitted the application for
renewal of driving school license with delay of 22 days. It is relevant to
extract the Rule 25 of the Central Motor Vehicle Rules as follows :-
“25. Duration of a licence and renewal thereof.—
A licence granted in Form 11 shall be in force for a
period of five years and may be renewed on an
application in Form 13 made to the licensing authority
which granted the licence not less than sixty days before
the date of its expiry:
Provided that the validity of the said licence shall
be subject to fulfilling the criteria as prescribed by the
State Government, which shall be certified by the
licensing authority or any other authority as may be
prescribed for the purpose by the State Government on
an annual basis.”
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7. There is no expressed provision under Rule 25 of the
Central Motor Vehicle Rules, to file application for renewal of license
with condone delay. Therefore, the only question arose in this petition is
whether the time limit of sixty days prescribed under Rule 25 of the
Central Motor Vehicles Rules for renewal of license would be extended
by invoking the Section 5 of the Indian Limitation Act. It doesn't
expressly exclude the applicability of Section 5 of the Limitation Act.
8. The applicability of Section 5 of the Limitation Act has been
dealt with in detailed manner by the Hon'ble Supreme Court of India in
the case of Mangu Ram Vs. Municipal Corporation of Delhi, reported
in (1976) 1 SCC 392, and it was followed by the Hon'ble Three Judge
Bench of the Hon'ble Supreme Court of India in the judgment reported in
(2024) 7 SCC 91 in the case of Mohd. Abaad Ali and anr Vs.
Directorate of Revenue Prosecution Intelligence, and held as follows :-
“6. This Court on its interpretation of sub-section
(4) of Section 4174 of old CrPC and Section 29(2) of the
old Limitation Act i.e. the Limitation Act, 1908 held that
Section 5 of the Limitation Act would not apply in an
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application for leave to appeal under sub-section (3) of
Section 417 of the old CrPC before the High Court,
inasmuch as Section 417 is a special code in itself and
the limitation prescribed therein is 60 days and the court
has no power to relax such a limitation to condone the
delay. Relying upon a Full Bench Judgment of the
Bombay High Court [Anjanabal Yeshwantrao v.
Yeshwantrao Daulatrao Dudhe] which held that Section
417(4) was special law within the meaning of Section
29(2) of the Limitation Act. Thus, the appeal was
dismissed while relying on Section 29(2) of the old
Limitation Act.
7. For ready convenience of this Court, Section
29(2) of the old Limitation Act is reproduced below:
"29. (2) Where any special or local law prescribes
for any suit, appeal or application a period of limitation
different from the period prescribed therefore by the first
schedule, the provisions of Section 3 shall apply, as if
such period were prescribed therefor in that schedule,
and for the purpose of determining any period of
limitation prescribed for any suit, appeal or application
by any special or local law-
(a) the provisions contained in Section 4, Sections
9 to 18, and Section 22 shall apply only insofar as, and
to the extent to which, they are not expressly excluded by
such special or local law; and
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(b) the remaining provisions of this Act shall not
apply."
8. A perusal of the aforesaid provision clearly
shows that where there is a special or local law
prescribing the period of limitation in any suit, appeal
or application which is different from the period of
limitation prescribed in the first schedule of the
Limitation Act, the applicability of the Limitation Act
will be only as regarding Section 4 and Sections 9 to 18
and 22 of the Limitation Act. The meaning thereby
afforded is that Section 5 of the old Act was expressly
excluded in cases where special law or local law
provides for a period of limitation. The learned counsel
for the appellant would argue that although in the
present case, we are dealing with present Criminal
Procedure Code, 1973 and the new Limitation Act, 1963
however, the provisions in the present Code for appeal
against acquittal i.e. under Section 378 CrPC are of
similar nature regarding the prescription of a period of
limitation for filing an appeal and therefore the law as
laid down by Kaushalya Rani, would apply in the
present case as well.
9. This submission of the learned counsel is not
correct. Subsequent to the decision of this Court in
Kaushalya Rani, this Court in Mangu Ram v. MCD,
while dealing with a similar problem of limitation (in an
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appeal against acquittal), distinguished Kaushalya Rani,
as Kaushalya Rani was dealing with the old Criminal
Procedure Code, 1898 and the old Limitation Act, 1908,
where provisions were differently worded. Under
Section 378 of the new CrPC read with Section 29(2) of
the Limitation Act, 1963 though a limitation is
prescribed, yet Section 29 (2) of the 1963 Act, does not
exclude the application of Section 5.
10. Section 29(2) of the Limitation Act, 1963 reads
as under:
"29. (2) Where any special or local law prescribes
for any suit, appeal or application a period of limitation
different from the period prescribed by the Schedule, the
provisions of Section 3 shall apply as if such period
were the period prescribed by the Schedule and for the
purpose of determining any period of limitation
prescribed for any suit, appeal or application by any
special or local law, the provisions contained in Sections
4 to 24 (inclusive) shall apply only insofar as, and to the
extent to which, they are not expressly excluded by such
special or local law."
11. The crucial difference here is of applicability
of Section 5 of the Limitation Act. In both the Limitation
Acts i.e. the Limitation Act of 1908 and the present
Limitation Act of 1963, the provision of extension of time
of limitation is given in Section 5 of the two Acts.
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Whereas the 1908 Act specifically states that Section 5
will not apply when the period of limitation is given in
special Acts, the 1963 Act makes Section 5 applicable
even in the special laws when a period of limitation is
prescribed, unless it is expressly excluded by such
special law.
12. A comparative provision of Section 29(2) in
the two Acts is given below:
"Section 29(2) of the old Section 29(2) of the new
Limitation Act of 1908 Limitation Act of 1963
29. (2) Where any special or 2. (2) Where any special or
local law prescribes for any local law prescribes for any
suit, appeal or application a suit, appeal or application a
period of limitation different period of limitation different
from the period prescribed from the period prescribed
therefor by the first schedule, by the Schedule, the
the provisions of Section 3 shall provisions of Section 3 shall
apply, as if such period were apply as if such period were
prescribed therefor in that the period prescribed by the
schedule, and for the purpose Scheduled and for the
of determining any period of purpose of determining any
limitation prescribed for any period of limitation
suit, appeal or application by prescribed for any suit,
any special or local law: appeal or application by any
(a) the provisions contained in special or local law, the
Section 4, Sections 9 to 18 and provisions contained in
Section 22 shall apply only Section 4 to 25 (inclusive)
insofar as, and to the extent to shall apply only insofar as,
which, they are not expressly and to the extent to which,
excluded by such special or they are not expressly
local law; and excluded by such special or
(b) the remaining provisions of local law.
this Act shall not apply.
https://www.mhc.tn.gov.in/judis
13. As Kaushalya Rani was decided under the
provisions of the old Limitation Act of 1908, this Court in
Mangu Ram distinguished Kaushalya Rani and held as
under: (Mangu Ram case, SCC pp. 396- 97, para 7)
7. There is an important departure made by the
Limitation Act, 1963 insofar as the provision contained in
Section 29, sub-section (2), is concerned. Whereas, under
the Limitation Act, 1908, Section 29, sub-section (2),
clause (b) provided that for the purpose of determining any
period of limitation prescribed for any suit, appeal or
application by any special or local law, the provisions of
the Limitation Act, 1908, other than those contained in
Sections 4, 9 to 18 and 22, shall not apply and, therefore,
the applicability of Section 5 was in clear and specific
terms excluded, Section 29, sub-section (2) of the
Limitation Act, 1963 enacts in so many terms that for the
purpose of determining the period of limitation prescribed
for any suit, appeal or application by any special or local
law the provisions contained in Sections 4 to 24, which
would include Section 5, shall apply insofar as and to the
extent to which they are not expressly excluded by such
special or local law. Section 29, sub-section (2), clause (b)
of the Limitation Act, 1908 specifically excluded the
applicability of Section 5, while Section 29, sub-section (2)
of the Limitation Act, 1963, in clear and unambiguous
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terms, provides for applicability of Section 5 and the ratio
of the decision in Kaushalya Rani case can, therefore,
have no application in cases governed by the Limitation
Act, 1963, since that decision proceeded the applicability
of Section 5 was on ton of Section 29(2)(b) of the
Limitation Act, 1908. Since under the Limitation Act, 1963,
Section 5 is specifically made applicable by Section 29,
sub-section (2), it can be availed of for the purpose of
extending the period of limitation prescribed by a special
or local law, if the applicant can show that he had
sufficient cause for not presenting the application within
the period of limitation. It is only if the special or local law
expressly excludes the applicability of Section 5, that it
would stand displaced. Here, as pointed out by this Court
In Kaushalya Rani case the time-limit of sixty days laid
down in sub -section (4) of Section 417 is a special law of
limitation and we do not find anything in this special law
which expressly excludes the applicability of Section 5. It
is true that the language of sub-section (4) of Section 417
is mandatory and compulsive, in that it provides in no
uncertain terms that no application for grant of special
leave to appeal from an order of acquittal shall be
entertained by the High Court after the expiry of sixty days
from the date of that order of acquittal. But that would be
the language of every provision prescribing a period of
limitation. It is because a bar against entertainment of an
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application beyond the period of limitation is created by a
special or local law that it becomes necessary to invoke the
aid of Section 5 in order that the application may be
entertained despite such bar. Mere provision of a period of
limitation in howsoever peremptory or imperative
language is not sufficient to displace the applicability of
Section 5. The conclusion is, therefore, irresistible that in
a case where an application for special leave to appeal
from an order of acquittal is filed after the coming into
force of the Limitation Act, 1963, Section 5 would be
available to the applicant and if he can show that he had
sufficient cause for not preferring the application within
the time-limit of sixty days prescribed in sub-section (4) of
Section 417, the application would not be barred and
despite the expiration of the time-limit of sixty days, the
High Court would have the power to entertain it."
9. Therefore, if the petitioner can show that he had sufficient
cause for non preferring the application for renewal of license within the
time limt of sixty days prescribed under Rule 25 of the Central Motor
Vehicle Rules, he would not be barred and despite the expiration of the
time limit of sixty days, since Section 5 of the Limitation Act would be
available to the petitioner. This Court is very much satisfied with the
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reasons stated by the petitioner in the affidavit, for the delay in filing the
application for renewal of license that, due to Covid-19 the petitioner
could not able to submit application in time for his renewal of driving
school license.
10. Insofar as the reasons stated by the appellate authority viz.,
the first respondent for rejecting the appeal filed by the petitioner that the
Additional Chief Secretary to Government, Home (Tr-II) Department
issued order to cancel the driving school license of the petitioner in
pursuance of the report of the appropriate investigating authority in
regard to the surprise check conducted on 24.10.2019 at the Regional
Transport Office, Chengalpattu.
11. It is relevant to extract the Rule 28 of the Central Motor
Vehicle Rules, 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
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(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,—
(i) suspending the licence for a specified period;
or
(ii) 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.”
Thus, it is clear that the second respondent i.e., the licensing authority
only has the power to suspend or revoke the license. In fact, before
suspending or revoking license, the holder of license has to be given an
opportunity of hearing.
12. Though the first respondent rejected the appeal filed by the
petitioner as if the appeal for renewing the driving school license is
infructuous, the reason stated in the order is that only on the basis of the
order passed by the Additional Chief Secretary to Government Home
(Tr-II) Department, dated 19.03.2020. Admittedly, the petitioner was not
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given an opportunity of hearing before cancellation of license issued to
the petitioner. While exercising quasi judicial power, the first respondent
must independently apply its mind before passing the order in the appeal.
The first respondent ought not to have rejected the appeal on the basis of
the order passed by the Additional Chief Secretary to Home Department.
13. That apart, the first respondent has no authority to cancel or
suspend or revoke the license of the petitioner, since the licensing
authority has only got the power to cancel, suspend or revoke the license
viz., the second respondent. Therefore, the first respondent has to pass an
order only based on the materials and he can never be influenced by any
instructions or recommendations made by other officers. In other words,
the first respondent is being a quasi judicial authority is not bound by any
instructions or recommendations given by others, by virtue of the very
jurisdiction that is exercised by the said authority.
14. In view of the above discussions, the impugned orders
passed by the second respondent in Memo No.6285/A3/2020 dated
19.02.2020 and the consequential order of the first respondent in
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R.No.107888/HB1/ 2020 dated 21.11.2020, are hereby quashed. The
second respondent is directed to renew the license of the petitioner's
driving school forthwith, if otherwise the petitioner fulfilled the other
conditions.
15. With the above directions, the Writ Petition stand allowed.
Consequently, connected miscellaneous petitions are closed. There shall
be no orders as to costs.
23.09.2024
Index : Yes/No
Speaking/Non Speaking order
Neutral Citation : Yes/No
rts
To
1. The Additional Chief Secretary/
Transport Commissioner,
Chepauk,
Chennai – 600 005.
2. The Licensing Authority,
Regional Transport Office,
Chengalpattu.
https://www.mhc.tn.gov.in/judis
G.K.ILANTHIRAIYAN. J,
rts
W.P.No.1337 of 2021 and
W.M.P.Nos.1502 & 1503 of 2021
23.09.2024
https://www.mhc.tn.gov.in/judis
