J.B. Pardiwala, J.@mdashBy this writ application in the nature of a Public Interest Litigation, the petitioner claiming to be a public spirited citizen has prayed for the following reliefs:
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a) Your Lordships may be pleased to issue writ of certiorari or the writ of mandamus or writ in a nature by holding the action of the Road and Transport Department, in issuance of smart card type licence to the driving license holder as illegal, unconstitutional and in violation of the provisions of Article 19 of the Constitution of India.
b) Your Lordships may be pleased to issue a writ of certiorari or the writ of mandamus or writ in a nature by issuance of instruction upon the respondent authorities to give an option of issuance of license book or smart card in any pattern like PAN card, Voter ID card and Adhar Card in alternative to issuance of driving license in form of smart card.
c) Your Lordships may be pleased to issue a writ of certiorari or the writ of mandamus or writ in a nature by calling for the details as to the amount so far collected by the respondent authorities in the pretext of smart card and whether any amount is invested to purchase the machine for the purpose of reading smart chip on the smart card.
d) Your Lordships may be pleased to issue directive upon the respondent authorities to issue smart card with or without chip at the equal price at par with the cost of issuance of the cards like PAN card, Adhar Card, ID card could as could availed by the Citizen.
e) Your Lordships may be pleased to issue direction upon the respondent authorities to assess the amount so far collected by the department and not invested the same in purchase of machine to read the data on the smart chip on smart card i.e. license after the introduction of the modernized system of issuing smart card to the driving license holder.
f) Your Lordship may be pleased to grant any other and further relief as may be deem fit and proper in the interest of justice."
2. The case made out by the petitioner may be summed up thus :
2.1 The respondent no. 1 viz. the Road & Transport Department of the State Government has introduced a system of issue of Smart Card/Driving Licence to the License holder fitted with a small electronic device i.e. a smart chip. It is a new measure of modernized way of issuing driving licence called a "Smart Card".
2.2 At the time of issue of such Smart Card, it is represented by the authorities that the smart card contains the necessary details about the licence holder including the details regarding the date of issue of the licence and the date of expiry of the licence. The smart card also contains a electronic gadget i.e. electronic chip which would contain certain information not known to the person holding such a smart card.
2.3 According to the petitioner the issue of smart card would cost about Rs. 200/- as against the issue of licence in the form of a small book and the cost of such book would be around Rs. 50/-. The extra amount which is being recovered is on the premise that the State Government incurs a cost of about Rs. 200/- for the issue of a smart card. The grievance of the petitioner is that the earlier mode of issue of a book has been discontinued with an introduction of the smart card at the cost of almost 2 1/2 times. In the market there are competitors who are ready to supply large quantity of smart cards at a cheaper rate anywhere between Rs. 00 to Rs. 95/-. The extra amount of Rs. 140/- which is being charged for the electronic gadget i.e. the chip is of no use. Although the smart card contains a micro processor chip, yet the State Government has not been able to provide for any machine or device through which the Officers of the Department can have access to the information stored in the chip.
2.4 The Government has not purchased machines to read the information by means of decoding the digits on the smart chip.
2.5 The Government has no idea regarding the technology available by which the information stored in the chip could be utilized.
2.6 According to the petitioner, the smart card introduced under the pretext of modernization is nothing but an eye-wash. The smart card without the smart chip would not cost more than Rs. 20/-, however, the charge being levied from a citizen is Rs. 200/-. If the Government wants to charge its citizens Rs. 200/-, then at the same time it is obliged to procure machines to read the data stored in the smart chip.
2.7 According to the petitioner the recovery of Rs. 200/- against issue of smart card is an arbitrary act on the part of the State Government being violative of Articles 14, 19, 21 of the Constitution of India. According to the petitioner, a simple smart card like a Pan Card, Voter ID card and/or Adhar Card would be available in the market at the price of Rs. 90/-. In such circumstances there is no justification on the part of the State Government to charge Rs. 200/- towards the issue of driving licence in the form of a Smart Card. The earlier method of providing licence in the form of a book has been totally discontinued and each and every citizen is compelled to procure the smart card with the extra burden of Rs. 140/- being the price difference between the cost of a licence book and a smart card.
3. Submissions on behalf of the petitioner :
3.1 Mr. Hemant K. Makwana, the learned advocate appearing on behalf of the petitioner has strenuously contended before us that the State Government has collected huge amount in the name of Smart Card. In the years between January, 2011 and June, 2013 around 2,62,000 individuals had passed the driving test and out of those, at least 2,00,000 individuals must have secured smart cards thereby suggesting that on an average a sum of Rs. 2.00 crore must have been recovered by the State Government. Mr. Makwana submits that the object of introduction of Smart Card is not being served unless and until the State Government procures the technology to read the information stored in the chip.
3.2 Mr. Makwana, in such circumstances prays that there being merit in this petition, the same deserves consideration and the State Government should be called upon to answer the averments made in this petition.
4. Since an advance copy of the petition was served upon the State Government, at the time of hearing of this petition, Mr. P.K. Jani, the learned Government Pleader appearing with Mr. Vandan Baxi, the learned AGP for the State assisted us in understanding the issue raised by the petitioner.
5. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration in this Public Interest Litigation is whether the petitioner is entitled to any of the reliefs prayed for in the petition.
6. The petitioner has raised three issues; first, with regard to the cost of the smart card recovered by the State Government, secondly, the policy of the State Government in discontinuing with the system of issue of driving licence in a booklet form substituting it with the issue of a smart card containing a Micro Processor chip and, thirdly, the non-availability of the Smart Card readers (a device or a gadget which would help the RTOs and Police to check the authenticity of the cards).
7. Mr. Jani, the learned Government Pleader submitted that so far as the registration of a motor vehicle is concerned, the certificate of registration has to be issued in the form prescribed by the Central Government and under the proviso to Rule-81 of the Central Motor Vehicles Rules(1989) the fee prescribed for a smart card is Rs. 200/-. Mr. Jani submits that no vehicle owner is asked to pay more than Rs. 200/- for having registration certificate on the smart card in view of the Motor Vehicles Rules. It is further submitted that the Rule-48 has been amended and a new Form 23A has been added along with Form 23 in the Motor Vehicle Rules. This new form provides for the certificate of registration in an electronic medium as a smart card.
8. Before adverting to the rival submissions canvassed on either side, we may refer to certain relevant provisions in the Motor Vehicles Act and Rules. Section 41 of the Motor Vehicles Act 1988 states that:-
"41. Registration, how to be made.- (1) An application by or on behalf of the owner of a motor vehicle for registration shall be in such form and shall be accompanied by such documents. Particulars and information and shall be made within such period as may be prescribed by the Central Government :
Provided that where a motor vehicle is jointly owned by more persons than one, the application shall made by one of them on behalf of all the owners and such applicant shall be deemed to be the owner of the motor vehicle for the purposes of this Act.
(2) An application referred to in sub-section (1) shall be accompanied by such fee as may be prescribed by the Central Government.
(3) The registering authority shall issue to the owner of a motor vehicle registered by it a certificate of registration in such form and containing such particulars and information and in such manner as may be prescribed by the Central Government.
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(8) An application by or on behalf of the owner of a motor vehicle, other than a transport vehicle, for the renewal of a certificate of registration shall be made within such period and in such form, containing such particulars and information as may be prescribed by the Central Government.
(9) An application referred to in sub-section (8) shall be accompanied by such fee as may be prescribed by the Central Government."
9. A perusal of Section 41 makes it clear that so far as registration of motor vehicle is concerned, it is the absolute and exclusive power of the Central Government to prescribe the form of the application, document and particulars, information, etc. The Central Government is also empowered to prescribe the form of the certificate of registration and particulars and information of the registration certificate and the manner in which the certificate of registration is to be issued by the Registering Authority to the owner of a motor vehicle registered by it. The State Government has absolutely no power so far as the particulars and information and manner of the certificate of registration or fee to be charged for issuing the registration certificate is concerned.
10. Section 64 of the Motor Vehicle Act empowers the Central Government to make rules providing inter alia for.
"(b) the form in which the certificate of registration shall be made and the particulars and information it shall contain and the manner in which it shall contain and the manner in which it shall be issued under sub-section (3) of Section 41;
(e) the period within which and the form in which the application shall be made and the particulars and information it shall contain under sub-section (8) of Section 41,"
11. Section 43 of the Central Motor Vehicle Act empowers the State Government to make rules for the purpose of carrying into effect the provisions of Chapter IV other than the matter specified in Section 64.
12. Section 65 read with Section 64 makes it clear that the State Government has no power in relation to the matters pertaining to the registration or issuance of certificate of registration. All aspects relating to registration of motor vehicles and issuance of registration certificate are within the exclusive domain of the powers of the Central Government. In other words, the State Government cannot add, delete, alter or change the information, contents, manner and form of the registration certificate. The State Government cannot issue registration contrary to the rules framed by the Central Government. The State Government is also not empowered to charge a fee more than what is prescribed by the Central Government under Rules.
13. The Motor Vehicles Rules, 1989 framed by the Central Government prescribed the form of the application under Rule 47, the form of the registration certificate under Rule 48 and the fee to be charged for the issue of the certificate of registration under Rule 81. Form 23 is prescribed for issuing the registration certificate on paper.
14. The above rules were amended by the Government of India vide gazette notification dated 31.5.2002. The draft of the proposed amendment of the Rules was published in the Central Government gazette on 15.1.2002 inviting objection or suggestions from all persons likely to be affected thereby. After considering the objection and suggestions the final amended rules, called the Central Government Motor Vehicles (Third Amendment) Rules, 2002 was published in the Gazette of India on 31.5.2002 as stated above.
15. It is not necessary to mention all the amendments made by the Third Amendment Rules. However, we may refer to the relevant amendments.
Rule 2(s) of the Third Amendment Rule states :
""Smart Card" means a device capable of storing date and executing commands, which is a single chip microprocessor, mounted on a plastic card and the dimensions of the card and chip as specified in ISO-7816 specifications as may be amended from time to time."
16. Rule 7 of the Third Amendment Rules has amended Rule 81 of the Motor Vehicles Rules by inserting in the Table in the note the following proviso :
"Provided that in case for any purpose referred to in serial Nos. 4, 5, 6, 8, 9, and 10 of this Table is issued on any Smart Card, an additional amount of fee of rupees two hundred shall be charged for such card."
17. The Third Amendment Rules prescribed a new form viz. Form 23-A for certificate or registration in electronic medium as Smart Card. The said Form 23-A is as follows :
"FORM 23-A (see Rule 48) CERTIFICATE OR REGISTRATION (IN ELECTRONIC MEDIUM AS SMART CARD, ETC.)
Particulars to be printed on the Visual Inspection-one of Smart Card :
Contents of Visual Inspection zone
Certificate of Registration
1. Name of State Transport Department
2. Card Serial Number
3. Vehicle Registration Number
4. Registration Date (In dd-mm-yyy)
5. Owner''s Details :-
5.1 Name
5.2 Son/Wife/Daughter of
5.3 Address; Current Postal Address
6. Vehicle''s Details :-
6.1 Name of Manufacturer with Make
6.2 Colour
6.3 Fuel
6.4 Vehicle Class
6.5 Body Type
6.6 Seating Capacity
6.7 Standing Capacity
6.8 Date of Manufacture (In-mm-yyyy)
6.9 Unladen Weight
6.10 Cubic Capacity
6.11 When Base
6.12 Number of cylinders
7. Tax paid Upped (In-mm-yyyy)
8. Registration Validity (in dd-mm-yyyy)
9. Signature of Issuing Authority
10. Identification of Issuing Authority Contents of Machine Readable-one
11. Chip Serial Number
12. Owner Serial (No. of this the ownership has changed)
13. Tax Date (Date of validity of Tax): dd-mm-yyyy
14. Registration validity (In dd-mm-yyyy)
15. Hypothecation of Details :--
15.1 Name of Financer
15.2 Address of Financer
15.3 Hypothecated From (in dd-mm-yyyy)
15.4 Hypothecated Upped (in dd-mm-yyyy)
16. NOC Details :- (Future Use)
16.1. NOC Number
16.2 State to (Code only)
16.3 RTO to
16.4 NCRB Clearance Number
16.5 NOC Issue Date (In dd-mm-yyyy).
17. Insurance Details :- (Future Use)
17.1 Name of Company
17.2 Cover note Policy Number
17.3 Type of Insurance
17.4 Validity Up to (In dd-mm-yyyy)
18. Pollution Under Control Details :- (Future Use)
18.1 Checking Centre (Code only)
18.2 Validity Up to (In dd-mm-yyyy)
19. Tax Payment Details :-
Amount
Exemption/Receipt Number Payment Date (In dd-mm-yyyy)
Valid From (In dd-mm-yyyy)
Valid up to (In dd-mm-yyyy)
Exemption (Y/N)
20. Fitness Details :-
Validity (In dd-mm-yyyy)
Inspecting Officer
Location
21. Additional Information in respect of Transport Vehicle :-
Gross Vehicle Weight (In Kgs.) Number, Description and Size of tyres Registered Axle Weight Number of Semi Trailers
22. Challan Details :-
Challan Number
Accused Person (O-Owner, D-Driver, C-Conductor)
Section (Code Only)
Challaning Officer
Location
Date and Time (In dd-mm-yyyy/hh:mm)
Disposing Authority (R-RTO, C-Court)
Disposal Date (In dd-mm-yy)
Penalty
Receipt Number
23. Permit Details :
Permit Number
Type of Permit
Validity From (In dd-mm-yyyy)
Validity Up to (In dd-mm-yyyy)
Area of Operation
Route From
Route up to
Stage 1
Stage 2
Stage 3
24. Permit Actions :-
Action Code SUR/SUS/CAN
From Date (In-dd-mm-yyyy)
Up to Date (In dd-mm-yyyy)
Reason
25. All India Tourist Permit Details :-
From Date (In-dd-mm-yyyy)
UP to date (In-dd-mm-yyyy)
26. Authorization Details :-
State (Code Only)
Authorization Number
Validity From (In-dd-mm-yyyy)
Validity Up to (In-dd-mm-yyyy)
Bank Draft Amount
Bank Draft Number
Bank (Code Only)
Branch
Bank Draft Issue date (In-dd-mm-yyyy)
27. Counter Signature Details :-
Authorizing Office
Validity From (In-dd-mm-yyyy)
Validity Up to (In-dd-mm-yyyy)
Route From
Route UP to
Stage - 1
Stage - 2
Stage - 3"
18. We have quoted the entire text of Form 23-A which has been added by the Third Amendment Rules in order to show that all aspects of the registration certificate in an electronic medium have been specified in great detail in the said form which prescribes the particulars to be printed on the visual inspection zone of the Smart Card and the contents of the machine readable zone.
19. In view of the third amendment Rules, no citizen can insist that a certificate of registration must be issued in the form of a booklet.
20. The above takes us to the second issue raised by the petitioner regarding the fees recovered by the authorities for issue of driving licence in the form of a smart card. We do not find any merit in this issue also for the simple reason that the proviso to Rule 18 of the Motor Vehicles Rules itself prescribes the fee of Rs. 200/-.
21. We now deal with the third submission of Mr. Makwana regarding the non-availability of technology with the State Government to read the information stored in the micro processor chip attached to the smart card.
22. What is a smart card?
"A smart card, chip card, or integrated circuit card (ICC) is any pocket-sized card with embedded integrated circuits. Smart cards can provide identification, authentication, data storage and application processing. Smart cards may provide strong security authentication for single sign-on (SSO) within large organizations."
23. The Government of India has issued guidelines for the introduction of smart card-based driving licences and e-governance facilities in various functions of the transport departments in all the States of India. Gujarat was the first State in India to implement a smart card-based driver''s licence. The smart card driving licence contains an embedded chip that stores the cardholder''s fingerprint, digital signature and personal information.
24. Thus, it goes without saying that the issue of driving licence in the form of a smart card has its own advantages. The problem is that in the State of Gujarat the RTO officials as well as the police officials have not been provided so far with the smart card readers.
25. The lack of smart card readers with the RTO and police would mean that they would not be able to check the authenticity of the cards or record offences on them. The smart card readers would help the transport department to curb fraud in registration certificates. Smart Card RC issued by the State Transport Department have a unique chip in them that cannot be duplicated. As soon as the fake card is inserted, the reader would be able to detect it and the card would be liable to be seized. The smart card licences would be able to record all the offences and when a certain number would reach, the licence could be suspended. Many cases of drunk drivers resulting in fatal accidents are reported day in and day out. Such drunk drivers and other offenders are being let-off with meager fine although as habitual offenders they should face deterrent punishment. For such reasons, the RTO officials and the traffic police should be armed with an authorized smart card reader.
26. The grievance of the petitioner is that the Government should seriously consider providing of smart card readers. We do find some substance in the issue raised by the petitioner in public interest.
27. We may only say that it is advisable that the State Government may take appropriate decision in this regard at the earliest and see to it that the smart card readers are provided to the RTO officials including the police officials for effective implementation of the traffic rules and regulations, and also for curbing offences relating to vehicles like hit and run cases etc.
28. With the above observations, we close this Public Interest Litigation. The writ-petition is accordingly disposed of. No costs.
