IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) No. 44 of 2011 With CIVIL APPLICATION No. 7370 of 2011 In WRIT PETITION (PIL) No. 44 of 2011 For Approval and Signature:
HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================== ===============
========================================== =============== GUJARAT AUTO RIXSA FEDERATION & ANR.
Versus STATE OF GUJARAT & ORS ========================================== =============== Appearance :
MR ABDUL H CHHORIYA for PETITIONERS.
MR JK SHAH, ASST. GOVT. PLEADER for RESPONDENTS ========================================== =============== CORAM : HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA Date : 30/01/2012
C.A.V. JUDGMENT
(Per : HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)
1) By this Public Interest Litigation, the writ-petitioners, the Gujarat Autorickshaw Federation being represented by its President and also its Zonal Vice-President have challenged the legality of Rule 8 of the Central Motor Vehicles Act, 1989 which has been given effect from April 10, 2007 by which a minimum educational qualification has been prescribed for getting driving licence for transport vehicles for those persons who want to have a new licence.
2) According to the writ-petitioners, the imposition of such a restriction of having minimum educational qualification of passing 8th standard would take away the right of huge number of persons to have their right of earning livelihood by becoming a driver of transport vehicles. It is further contended that even if it is assumed for the sake of arguments that such imposition of restriction is otherwise permissible, at least eight years time should have been given to give effect to the said amended provisions so that the persons who have already taken steps for becoming driver of a transport vehicle are not deprived of such rights.
3) The writ-application has been contested by the respondent thereby contending that there is no illegality in imposition of such minimum educational qualification for getting licence as driver of transport vehicles when those drivers are required to meet various kinds of people and also obey various traffic signals and restrictions imposed under the Motor Vehicles Act and the Rules framed there under, which require some knowledge of English.
4) After hearing the learned counsel for the parties and after going through the materials on record, we find that under the Motor Vehicles Act, 1988 [hereinafter referred to as the Act], vehicles are classified into two types, viz. transport vehicles and non-transport vehicles. The eligibility criteria for obtaining licence for driving these two types of vehicles are different and they are specified in the Act.
5) So far as the subject matter of the present litigation is concerned, viz. driving licence for autorickshaw which is used for carrying passengers for hire on reward, there is no dispute that the same is a 'transport vehicle' within the meaning of section 2(47) of the Act which says a “transport vehicle” means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. According to section 2(35), “public service vehicle” means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab, a motorcab, contract carriage and stage carriage. Section 2(25) defines “motorcab” to mean any motor vehicle constructed or adapted to carry not more than six passengers excluding the driver for hire or reward. Thus, auto rickshaw used for carrying passengers for hire or reward falls within the definition of 'motorcab' and, therefore, it is classified as a 'transport vehicle'.
6) Section 9 of the Act contemplates grant of driving licence and according to section 9(4) of the Act, where the application is for a licence to drive transport vehicle, no such authorization shall be granted to any applicant unless he possesses such minimum educational qualification as prescribed by Government and a driving certificate issued by a school or establishment referred in section 12.
7) Section 27(g) of the Act empowers the Central Government to make rules prescribing the minimum educational qualifications for granting of licences for transport vehicle, and in exercise of such powers, the Central Government has framed rules known as Central Motor Vehicle Rules, 1989 [hereinafter referred to as the Rules]. Rule 8 of the said Rules provides for minimum educational qualification, which should be acquired by the persons who want to have a licence to drive transport vehicles. Minimum educational qualification for obtaining a licence to drive transport vehicle before October 28, 1989 was 4th standard pass. From October 28, 1989 till April 10, 2007, this Rule was deleted from the Rules and therefore, during the aforesaid period, this Rule was not in existence. Subsequently, the Central Government has re-inserted Rule 8 in the Rules with effect from April 10, 2007 imposing a condition that for persons who want to have driving licence for transport vehicles should have minimum educational qualification of 8th standard pass. However, the proviso to the said Rule prescribes that the minimum educational qualification specified in the said Rule will not be applicable in the case of renewal of a driving licence to drive transport vehicle or addition of another class of transport vehicle to driving license already held before the commencement of the Motor Vehicles (Amendment) Rules, 2007.
8) Having considered the aforesaid provisions, we are of the opinion that the legislature was quite conscious that the persons who are already in the profession of driving transport vehicles having no such minimum educational qualification should not be deprived of their right to earn their bread through the said profession.
9) We find substance in the contention of the respondent that the Auto rickshaw being a transport vehicle, the minimum educational qualification of 8th standard pass will help the driver to serve all kinds of people travelling in the auto rickshaw in a better way because by the time a person studies up to 8th standard, he acquires some knowledge of English language which will enable the driver of a transport vehicle to understand English, communicate with the passengers of various States and appreciate the traffic signs and symbols.
10) At this stage, we propose to refer to the following observations of the Supreme Court in the case of NAGALAND SENIOR GOVERNMENT EMPLOYEES WELFARE ASSOCIATION AND OTHERS vs. STATE OF NAGALAND AND OTHERS reported in (2010) 7 SCC 643 in paragraphs 41 to 45 while laying down the principles which a court should to follow in considering whether a provision of the statute is ultra vires constitution of India:
“41. That there is always a presumption in favour of the constitutionality of an enactment and that the burden is upon the person who attacks it, is a fairly well-settled proposition. In Mohd. Hanif v. State of Bihar [AIR 1958 SC 731] this Court stated: (AIR pp.74-41, para 15).
“15. …. The classification, it has been held, may be founded on different bases, namely, geographical, or according to objects or occupations or the like and what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. The pronouncements of this Court further establish, amongst other things, that there is always a presumption in favour of the constitutionality of an enactment and that the burden is upon him, who attacks it, to show that there has been a clear violation of the constitutional principles. The courts, it is accepted, must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds.
42. The aforesaid legal position was reiterated in Mahant Moti EDas v S.P. Sahai [AIR 1959 SC 942] in the following words: (AIR p.947, para7).
“7. …. The decisions of this Court further establish that there is a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional guarantee; that it must be presumed that the legislature understands and correctly appreciates the needs of its own people and that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds; and further that the legislature is free to recognize degrees of harm and may continue its restrictions to those cases where the need is deemed to be clearest.”
43. In State of U.P. v. Kartar Singh [AIR 1964 SC 1135] the Constitution Bench of this Court held that where a party seeks to impeach the validity of a rule on the ground of such rule offending Article 14, the burden is on him to plead and prove infirmity. This Court said: (AIR p. 1138, para 15).
“15. … If the rule has to be struck down as imposing unreasonable or discriminatory standards, it could not be done merely on any priori reasoning but only as a result of materials placed before the Court by way of scientific analysis. It is obvious that this can be done only when the party invoking the protection of Article 14 makes averments with details to sustain such a plea and leads evidence to establish his allegations. That where a party seeks to impeach the validity of a rule made by a competent authority on the ground that the rules offend Article 14, the burden is on him to plead and prove the infirmity is too well established to need elaboration. If, therefore, the respondent desired to challenge the validity of the rule on the ground either of its unreasonableness or its discriminatory nature, he had to lay a foundation for it by setting out the facts necessary to sustain such a plea and adduce cogent and convincing evidence to make out his case, for there is a presumption that every factor which is relevant or material has been taken into account in formulating the classification of the zones and the prescription of the minimum standards to each zone, and where we have a rule framed with the assistance of a committee containing experts such as the one constituted under Section 3 of the Act, that presumption is strong, if not overwhelming”.
44. In Sub-Divisional Magistrate, Delhi v. Ram Kali [AIR 1968 SC 1], the Constitution Bench of this Court reiterated the legal position thus: (AIR p.3, para 5] “5. …. The presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, and its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds”.
45. In Pathumma v. State of Kerala [(1978) 2 SCC 1, a seven- judge Bench of this Court highlighted that the legislature is in the best position to understand and appreciate the needs of the people as enjoined by the Constitution. It was stated: (SCC p.9, para 6).
“6. It is obvious that the legislature is in the best position to understand and appreciate the needs of the people as enjoined by the Constitution to bring about social reforms for the upliftment of the backward and the weaker section of the society and for the improvement of the lot of poor people. The Court will, therefore, interfere in this process only when the statute is clearly violative of the right conferred on the citizen under Part III of the Constitution or when the Act is beyond the legislative competence of the legislature or such other grounds. It is for this reason that the Courts have recognized that there is always a presumption in favour of the constitutionality of a statute and the onus to prove its invalidity lies on the part which assails the same”.
11) Applying the aforesaid tests to the facts of the present case we find that the writ-petitioners have failed to discharge the burden of proving invalidity of the aforesaid provisions impugned in this writ-application.
12) We do not find any reason to describe the imposition of minimum educational qualification of 8th standard pass for obtaining driving licence for transport vehicle to be unreasonable as discussed earlier.
13) It is needless to mention that it not also the case of the petitioners that the said provision is enacted by an authority having no legislative competence.
14) On consideration of the entire material on record, we find no merit in this application, and the same is accordingly dismissed. In the facts and circumstances of the case, however, there will be no order as to costs.
[BHASKAR BHATTACHARYA, ACTING C.J.] mathew [J.B.PARDIWALA. J.]