Full Judgment Text
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PETITIONER:
Y. MAHABOOB SHERIFF AND OTHERS
Vs.
RESPONDENT:
MYSORE STATE TRANSPORT AUTHORITYAND OTHERS
DATE OF JUDGMENT:
06/11/1959
BENCH:
WANCHOO, K.N.
BENCH:
WANCHOO, K.N.
SINHA, BHUVNESHWAR P.(CJ)
IMAM, SYED JAFFER
KAPUR, J.L.
GUPTA, K.C. DAS
CITATION:
1960 AIR 321 1960 SCR (2) 146
CITATOR INFO :
E 1962 SC1621 (20,53)
RF 1965 SC 40 (17)
R 1976 SC 853 (29)
D 1982 SC 149 (629,755)
ACT:
Motor vehicles-Stage carriage Permit-Period of renewal Duty
of Transport Authority -Motor Vehicles Act, 1939 (IV of
1939), as amended by Act 100 of 1956, s. 58.
HEADNOTE:
Sub-section (1)(a) of s. 58 of the Motor Vehicles Act, 1939,
provides,-
" A stage carriage permit or a contract carriage permit
other than a temporary permit issued under s. 62 shall be
effective without renewal for such period not less than
three years and not more than five years, as the Regional
Transport Authority may specify in the permit. "
Sub-section (2) provides,-
" A permit may be renewed on an application made and dis-
posed of as if it were an application for a permit.
Provided that ....................."
The stage carriage permits of the petitioners were ending on
March 31, 1958, and they applied to the Regional Transport
Authority, Bangalore for a renewal of them. The Transport
Department of the Mysore State Government opposed such
renewal and applied that fresh permits for the routes in
question might be granted to it as the State Government
intended to nationalise the transport services. The
Authority, however, dismissed the applications of both the
contending parties, but, on appeal, its orders were set
aside and the matter was remanded for a fresh decision. A
scheme under s. 68C of Ch. IVA of the Act was in the
meantime published and approved by the State Government,
which was later on quashed by the High Court at the instance
of the petitioners. The Authority passed orders renewing
the permits of the petitioners for a period of one year from
April 1, 1958, to March 31, 1959. Appeals against the said
orders having proved abortive the petitioners applied to the
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High Court under Arts. 226 and 227 of the Constitution and
those applications were summarily dismissed and certificates
to appeal to this Court refused. The petitioners thereupon
applied to this Court under Art. 32 of the Constitution.
The question for determination was whether on a proper
construction of sub-s. (1)(a) and, sub-s. (2) of S. 58 of
the Act, read together, the period of renewal was to be the
same as provided for the grant of permits under the former
and the Authority in renewing a permit was bound to specify
the period of such renewal. It was contended on behalf of
the Department that, even supposing that a renewal must be
for the same period as provided for the original grant, this
Court by writ could do no more than quash the order made by
the Authority, leaving it to decide the question of renewal
in accordance with the law as laid down by it.
Held (per Sinha, C.J., Imam, Wanchoo and Das Gupta, JJ.),
that under s. 58 of the Motor Vehicles Act, 1939, properly
construed, the period for which a permit could be renewed
under sub-s. (2) of that section must be not less than three
years and not more than five years as provided for the grant
of a permit under sub-s. (1)(a) thereof and the Regional
Transport Authority, in exercising its discretion to grant a
renewal where it chose to do so, must specify the period of
renewal accordingly.
The words " without renewal " occurring in sub-s. (1)(a) do
not signify a contrary intention.
V. C. K. Bus Service Ltd. v. The Regional Transport
Authority, Coimbatore, [1957] S.C.R. 663, distinguished.
Since, in the instant case, the intention of the Authority
to grant renewal was clear, but in doing so it had, under a
misapprehension of the law, limited the renewal to one year
only, it was open to this Court to sever the legal part of
its order from the illegal and quash the latter.
R. M D. Chamarbaughwalla v. The Union of India, [1957]
S.C.R. 930 and Shewpujanrai Indrasanrai Ltd v. The Collector
of Customs, [1959] S.C.R. 821, referred to.
Since this Court was not bound by the technical rules
relating to issue of writs by English Courts, a direction in
the nature of mandamus must issue requiring the Authority to
specify the period of renewal in accordance with the law as
laid down by this Court.
T. C. Basappa v. T. Nagappa, [1955] 1 S.C.R. 250, relied on
Per Kapur, J.-In cases such as the one under review, the
power of judicial review possessed by this Court under Art.
32 of the Constitution extends to quashing and not
substituting an order in place of what an Administrative
tribunal has done or to direct what it should do.
All that the Court can do is to quash the order and leave it
to the tribunal to reconsider the matter and to exercise its
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jurisdiction keeping in view the law laid down by the
Court. In issuing such orders the courts would act in
consonance with the broad and fundamental principles
governing the granting of writs in English Law.
Consequently, even assuming that in renewing a permit
the Regional Authority had to do so for a period of not
less than three and not more than five years, this Court
would only quash the orders passed by the Regional Transport
Authority in the present case, and leave it to that
Authority to reconsider the matter in the light of the
decision of this Court.
Associated Provincial Picture Houses, Ltd. v. Wednesbury
Corporation, (1948) 1 K.B. 223, The King v. Willesden
justices, Ex Parte Utley, (1948) 1 K.B. 397, Veerappa Pillai
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v. Raman and Raman Ltd., [1952] S.C R. 584 and Basappa v.
Nagappa, [1955] 1 S.C.R. 250, referred to.
Shewpujanrai Indrasamrai Ltd. v. The Collector of Customs,
[1959] S.C.R. 821, explained and distinguished.
R. M. D. Chamarbaugwalla v. Union of India, [1959] S.C.R.
930, held inapplicable.
Kochunni v. State of Madras, A.I.R. 1959 S C. 725 and United
Motors Transport Co. v. Sree Lakshmi Motor Transport Co
Lid . A.I.R. 1945 Cal. 260 distinguished.
JUDGMENT:
ORIGINAL JURISDICTION: Petitions Nos. 54, 75 and 76 of 1959.
Petitions under Article 32 of the Constitution of India for
enforcement of Fundamental Rights.
C. K. Daphtary, Solicitor-General of India, and B. R. L.
Iyengar, for the petitioners.
H. N. Sanyal, Additional Solicitor-General of India,
R. Gopalakrishnan and P. M. Sen, for the respondent No. 3
in Petitions Nos. 54 and 75 of 1959.
1959. November 6. The judgments of Sinha, C.J., Imam,
Wanchoo and Das Gupta, JJ. was delivered by Wanchoo, J.
Kapur, J., delivered a separate judgment.
Petitions Nos. 54 and 75 of 1959.
WANCHOO J.-These are two connected petitions under Act. 32
of the Constitution and raise similar points and will be
disposed of by this judgment.
The brief facts necessary for their disposal are these: The
petitioners are transport operators in what is known as the
Anekal pocket of the State of Mysore.
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They held stage carriage permits for various routes, which
were expiring on March 31, 1958. They therefore applied for
the renewal of the permits on various dates in January
1958, as required under the law Normally, their applications
should have been disposed of before March 31, 1958.
However, on February 1, the Mysore Government Road Transport
Department (hereinafter called the Department) made
applications under Chapter IV of the Motor Vehicles Act, No.
IV of 1939, (hereinafter called the Act) for grant of
permits on the same routes for which renewal applications
were pending. The Department followed this up by a letter
dated February 25, 1958, to the Regional Transport
Authority, Bangalore, (hereinafter called the Authority).
In this letter, the Authority was informed that the
Department had already submitted applications for grant of
permits for operation of transport vehicles in the Anekal
pocket and it was proposed to take over these routes with
effect from April, 1, 1958. It was also pointed out that
the Government of Mysore bad been pursuing the policy of
nationalisation of road transport services with a view to
rationalise and co-ordinate the various forms of transport
and that the Department was operating 1,200 vehicles on 700
routes. The letter went on to point out the advantages of
granting permits to the Department resulting in
rationalisation of the routes in the Anekal pocket in which
at that time there were 20 routes and 58 operators. It was
therefore requested that the permits of the petitioners
should not be renewed and fresh permits granted to the
Department.
The Authority met a number of times from March to July 1958
but passed no orders on the applications of the petitioners
nor on those of the Department. Eventually, on August 11,
1958, the Authority dismissed the petitioners’ applications
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for renewal as well as the Department’s for grant of fresh
permits. We must say that this appears to be a curious
order, for the result of this order strictly would be that
no stage carriages would be able to ply on these routes.
However, both parties’ appealed on September 9, 1958,
against the orders of August 11. In the meantime, a
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scheme under s. 680 of Chapter IV-A of the Act was
published. This scheme was approved on October 24, 1958,
while the appeals were pending. On October 30, the
appeals of both parties were allowed and the matter was
remanded to the Authority for fresh disposal. In the
meantime, however, the petitioners had applied to the
High Court for quashing the scheme and it was quashed by the
High Court on December 3, 1958. Thereafter the Authority
met again and passed orders renewing the permits of the
petitioners for a period of one year from April 1, 1958 to
March 31, 1959. The petitioners went up in appeal against
the orders granting them renewal only for one year on the
ground that they were entitled to renewal for three years at
least under s. 58 of the Act. Their appeals were dismissed
as not maintainable. They also applied to the High Court of
Mysore under Articles 226 and 227 of the Constitution but
their petition was dismissed in limine and a certificate to
enable them to appeal to this Court was refused on March 30,
1959. Thereafter the present petitions were filed in this
Court. In the meantime, however, a fresh scheme was
published on January 22, 1959, and after necessary
formalities was approved on April 15, 1959, and finally
published as an approved scheme on April 23, 1959. What
happened thereafter is not really material for purposes of
these petitions but we may as well mention it to complete
the narrative. The Department applied for permits under s.
68F of the Act on April 24, 1959. On April 30, 1959, the
petitioners challenged the new scheme before the High Court
of Mysore by a writ petition. That petition was however
dismissed on June 1, 1959. Thereafter they came to this
Court for special leave and prayed for ex parte stay, which
was refused. Notice was however issued on the stay
application which was served in June 18,1959. It may be
mentioned here that in order to avoid inconvenience to the
public temporary permits had been granted to the petitioners
on the expiry of the renewal upto March 31, 1959, for a
period of four months or upto the time the Department was
granted permits under s.68F, whichever was earlier.
Consequently on June 23,
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1959, the Authority met and granted permits to the
Department under s. 68F and rejected the renewal
applications of the petitioners which were said to have been
filed under protest. On June 24, 1959, the transport
services in pursuance of the scheme were inaugurated by the
Chief Minister. On the same day the petitioners applied to
the High Court by a writ petition challenging the order of
June 23, 1959. On July 14, 1959, the High Court held that
the grant of permits to the Department was invalid and the
rejection of the renewal applications was incorrect. But it
did not pass any order in favour of the Petitioners on the
ground that the relief granted would be short-lived and
dismissed the writ petition. The petitioners then applied
for a certificate to enable them to appeal to this Court and
that application is still pending. Thereafter the
Department applied for temporary permits which were granted
on July, 16, Another writ petition was filed on July 24,
1959, by the petitioners challenging the grant of temporary
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permits to the Department which is still pending. In the
meantime, the petitioners filed two other writ petitions in
this Court which were admitted and will be dealt with
separately. Finally, the special leave petition against the
judgment of the High Court dismissing the writ petition
against the approved scheme was dismissed by this Court on
September 7, 1959.
The main contention of the petitioners ’in these cases is
that they are entitled to carry on the business of transport
of passengers as a fundamental right guaranteed to them
under Art. 19(1)(g) of the Constitution, and that this right
can only be restricted in the manner provided by the Act
which is a regulatory measure dealing with motor vehicles.
They contend that they were entitled under s. 58 of the Act
to renewal of their permits for three years in case the
Authority decided to’ renew them on the applications which
they had made in January 1958 and in so far as the Authority
gave them renewal only for one year it was acting in
contravention of the Act and was thus committing a breach of
their fundamental right. They
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therefore pray that this Court should come to their aid and
protect their fundamental right to carry on the business of
transport in accordance with the Act. The prayer which they
actually made is somewhat inartistic but in effect they want
that the authority be directed to renew their permits in
accordance with the Act, which requires that the renewal
must be for a period of not less than three years and not
more than than five years so far as stage carriage permits
are concerned.
The respondents to these petitions are the Mysore State
Transport Authority, the Regional Transport Authority and
the General Manager, Mysore Government Road Transport
Department. No appearance has been put in on behalf of the
first two. The petitions are being opposed by the third
respondent, namely, the Department; and the main contention
on its behalf is that on a correct interpretation of s. 58
of the Act it is open to the Authority to renew a permit for
any period it chooses to fix and therefore it was acting in
accordance with the law when it fixed the period at one
year. It is further contended that even if the Authority
must fix a period of not less than three years and not more
than five years, the only order that this Court should pass
in these cases is to quash the order of the Authority dated
December 15, 1958, and direct it to decide the renewal
applications in accordance with the law to be laid down by
this Court.
It will be clear from the above contentions of the parties
that the first and foremost question in this case is the
interpretation of s. 58 of the Act. That section appears in
Chapter IV of the Act which deals with Control, of Transport
Vehicles in which term is included " a stage carriage " with
which we are concerned here. It is necessary therefore to
consider the scheme of Chapter IV in order to interpret s.
58 thereof. That Chapter begins with s. 42 which prohibits
the owner of a transport vehicle from using it except in
accordance with the conditions of a permit granted or
countersigned by a Regional or State Transport Authority.
Section 44 provides for the constitution of the State
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and Regional Transport Authorities. Then comes ss. 45 and
46, which provide for making of an, application for permit
and the contents of such an application. Section 47 sets
out matters to which a Regional Transport Authority shall
have regard in considering the application for a stage
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carriage permit. Section 48 gives power to the Regional
Transport Authority to grant a stage carriage permit in
accordance with the application or with such modifications
as it deems fit. It also provides that every stage carriage
permit shall be expressed to be valid for specified route or
routes and sets out the conditions which may subject to any
rules, be attached to a permit. We are not concerned in
these cases with ss. 49 to 56, which deal with other kinds
of transport vehicles. Section 57 provides the procedure in
applying for and granting of permits. Then comes s. 58,
which deals with duration and renewal of permits and is in
these terms:
" 58(1)(a)-A stage carriage permit or a contract carriage
permit other than a temporary permit issued under s. 62
shall be effective without renewal for such period, not less
than three years and not more than five years, as the
Regional Transport Authority may specify in the permit.
(b)-A private carrier’s permit or a public carrier’s permit
other than a temporary permit issued under s. 62 shall be
effective without renewal for a period of five years.
(2)-A permit may be renewed on an application made and
disposed of as if it were an application for a permit:
Provided that the application for the renewal of a permit
shall be made-
(a) in the case of a stage carriage permit or public
carrier’s permit, not less than sixty days before the date
of the expiry; and
(b) in any other case, not less than thirty days before the
date of its expiry:
Providing further that, other conditions being equal, an
application for renewal shall be given preference over new
applications for permits.
20
154
(3)...................... "
I will be seen from this scheme of the Act that the duration
of a permit is not one of the conditions
attached to it but is specifically provided for in s. 58.
Sub-s. (1)(a) thereof comes into play after the Authority
has decided to grant a permit and lays down that a stage
carriage permit or a contract carriage permit other than a
temporary permit issued under s. 62 shall be effective
without renewal for such period not less than three years
and not more than five years as the Authority may specify in
the permit. This sub-section therefore casts a duty on the
Authority after it has decided to grant a stage carriage
permit to specify therein the period for which it shall be
valid and this period can in no case be less than three
years and more than five years. This sub-section applies to
grant of a permit. Then comes sub-s. (2), which lays down
that a permit may be renewed on an application made and
disposed of as if it were an application for a permit. The
contention on behalf of the petitioners is that this
provision means that an application for renewal shall in all
respects be treated as an application for a permit and
therefore the period provided under s. 58(1) (a) for a
permit would also govern the period for which the renewal
should be granted. On the other hand, it is contended for
the Department that sub-s. (2) only refers to the procedure
for granting permits and the duration provided for sub-s.
(1)(a) being not a matter of procedure will not apply to a
renewal. It is conceded that there is no other provision in
the Act which lays down the period for which a renewal
should be made. But it is urged that this means that it is
open to the Authority to fix any reasonable period for
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renewal. Reliance in this connection was placed in
particular on the words " without renewal " appearing in
a.58(1) and also on a decision of this Court in V. C. K.
Bus Service Ltd. v. The Regional Transport Authority,
Coimbatore (1). That case however did not deal with the
question before us but with a different question altogether.
The question there was whether
(1) [1957] 1 S.C.R. 663.
155
a renewal amounted to a grant of a fresh permit or was
merely a continuation of the original permit. This Court
held that the renewal was a continuation of the original
permit. It had no occasion then to deal with the question
specifically before us, namely, whether a renewal should
also be for the same period as provided in s. 58 (1)(a).
Let us therefore turn to the contention based on the words "
without renewal " appearing in s. 58 (1)(a). It is urged
that these words clearly indicate that s. 58(1)(a) applies
only to the first grant of the permit and cannot in any
circumstances apply to a renewal of the permit. As we have
already said, s. 58(1)(a) specifically deals only with the
grant of a permit and not with a renewal. The words "
without renewal " appearing in that sub-section only signify
that in counting the period of a permit renewals should be
disregarded. It was necessary to put in these words to meet
a possible contention arising out of the fact that a renewal
only amounts to a continuation of the original permit. The
effect of these words is that in considering the period of a
permit the period of the renewal should not be added to the
period of the permit, thus making the total period which may
be more than five years invalid under s. 58(1)(a). For
example, a permit may be granted for five years. It is then
renewed for another five years. Now the permit is the same
and the renewal is only endorsed upon it. If the words "
without renewal " were not in the sub-section it might be
contended that the permit being the same its period was ten
years and therefore it contravened s. 58 (1)(a). These
words therefore were necessary to meet this contention and
are no indication that the period mentioned in s. 58(1)(a)
does not apply to renewals. We may in this connection refer
to the language of s. 10 where also the same two words
occur, i.e. :
" A driving licence issued or renewed under this Act shall,
subject to the provisions contained in this Act as to the
cancellation of driving licences and disqualification of
holders of driving licences for holding or obtaining driving
licences, be effective
156
without renewal for a period of three years only,
from the date of the issue of the licence or, as the case
may be, from the date with effect from which the
licence is renewed under s. 11."
Thus, though the earlier part of s. 10 specifically deals
with issue and renewal of driving licences, the words "
without renewal " are to be found in the latter part and
that clearly indicates that these words were necessary to be
put in to meet the contention that the licence remaining the
same even after renewal its period could not in any case
exceed three years in all. It was however submitted that s.
10 specifically provides for renewals also for three years
and that is not provided in s. 58(1)(a). That is
undoubtedly so. But the reason why s. 58(1)(a) does not
provide specifically for renewals is to be found in the fact
that there is s. 58(2) specifically providing that an
application for renewal shall be made and disposed of as if
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it were an application for a permit. Section 11 which deals
with renewal of licences has no comparable words, for it
merely says that any licensing authority may on application
made to it, renew a licence issued under the provisions of
this Act from the date of its expiry. Different language
used in sub-s. (2) of s. 58 therefore must have a different
effect and the contention on behalf of the petitioners is
that s. 58(2) when it says that an application for renewal
shall be made and disposed of as if it were an application
for a, permit must mean that all incidents which apply to a
permit shall also apply to a renewal application. One of
the incidents which applies to a permit is that the
Authority is enjoined by sub-s. (1)(a) of s. 58 to indicate
a period of not less than three years and not more than five
years in the permit, so far as its duration is concerned.
The same must apply to a renewal and the Authority must
indicate when granting a renewal a period of not less than
three years and not more than five years as the duration.
We are of opinion that the contention of the petitioners as
to the effect of s. 58(2) is correct. There is no other
provision in the Act which fixes the duration of a renewal.
It could hardly be the intention of the
157
legislature that the duration of the renewal should be left
entirely to the discretion of the Regional Transport
Authority, particularly when the legislature took care to
fix the duration for the permit itself It is urged that the
legislature intended that the duration of the renewal
should be left to the Authority which would prescribe a
reasonable period, which may even be less than three years.
If that was so, it would be equally open to the Authority to
specify a period for more than five years which it may
consider reasonable. We do not think that this was the
intention of the legislature and the reason why no other
provision was made for the duration of a renewal was that
the legislature intended by these words in s. 58(2) that the
renewal would be for such period as was prescribed in s.
(1)(a) for a fresh permit. It is not disputed that the
effect of s. 58(2) is that the considerations for renewal
would be the same as for the grant of the permit and the
procedure would also be the same. But it is said that the
legislature did not intend to go further and prescribe the
same duration for a renewal as for a permit. We are of
opinion that there is no reason why we should stop short at
s. 57 and should not take into account s. 58(1)(a) as
applying to a renewal along with all other considerations
that apply to the grant of a permit. S. 58(2) lays down
that a renewal application shall be made and disposed of as
if it were an application for a permit and we think that all
that applies to the grant of a permit would also apply to
the grant of a renewal. One of the provisions which apply
to the grant of a permit is s. 58(1)(a) relating to the
duration of a permit and that must in our opinion on the
words of s. 58(2) apply to the duration of a renewal.
It may also be mentioned that there were amendments of s. 58
by various State legislatures by which the duration of a
permit could be fixed at less than three years. When,
however, the Central legislature made amendments in the Act
by the Amending Act No. 109 of 1956, the amendments made by
the State legislatures earlier fell through and the Central
158
legislature did not think it fit to give power to the State
legislatures to reduce the period below three years in the
case of a permit. If it were intended that a permit may be
granted for less than three years and a renewal may be made
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also for less than three years, we would have expected some
provision to that effect in the Amending Act of 1956, for
the Central legislature could not be unware of the
amendments made by the various State legislatures. In the
circumstances we are of opinion that the duration of a
permit under s. 58(1)(a) being not less than three years and
more than five years, the same applies to a renewal. We,
therefore, hold that reading ss. 58(1)(a) and 58(2)
together, a renewal must also be governed by the same
provision which governs the duration of a permit.
This brings us to the question of relief to be granted to
the petitioners. It is contended on behalf of the
Department that all that this Court can do is to quash the
order of December 15, 1958, and send the case back to the
Authority for consideration of the question of renewal
afresh. On the other hand, the petitioners contend that
this Court should quash the illegal condition limiting the
duration of the renewal to one year and direct the Authority
to specify a period of not less than three years and not
more than five years in conformity with s. 58(1)(a) in the
order of renewal. This raises the question of severability
of a part of the order passed by the Authority. The
principles on which any unconstitutional provision can be
severed and struck down leaving other parts of a statute
untouched were laid down by this Court in R. M. D.
Chamarbaugwalla v. The Union of India (1), and the first
principle is whether the legislature would have enacted the
valid part if it had known that the rest of the statute was
invalid. This principle relating to statutes was extended
by this Court to orders in Shewpujanrai Indrasanrai Ltd. v.
The Collector of Customs and Others (2), where a part of the
order of the Collector of Customs was quashed. The question
therefore resolves into this: Would the Authority have
ordered renewal if it knew that it could not reduce
(1) [1957] S.C.R. 930.
(2) [1959] S.C.R. 821.
159
the period of a permit to below three years ? Looking at the
facts of these cases which we have set out earlier, it is to
our mind obvious that the Authority would have granted
renewal in the circumstances of these cases when it did so
in December 1958. The previous permits in these cases had
expired on March 31, 1958, and the petitioners had been
plying their stage carriages right up to the time when the
order was passed on December 15, 1958; they could not do so
without a permit in view of s. 42 of the Act. Therefore,
renewal in these cases was certain when the order was passed
on December 15, 1958. In the circumstances it is open to us
to sever the illegal part of the order from the part which
is legal, namely, the grant of the renewal.
The next question is what order should be passed in the
circumstances. This depends on the exigencies of each case,
for this Court is not confined by the technical rules
relating to issue of writs by the English Courts. In T. C.
Basappa v. T. Nagappa and Another this Court observed as
follows at p. 256:
" The language used in articles 32 and 226 of our
Constitution is very wide and the powers of the Supreme
Court as well as of all the High Courts in India extend to
issuing of orders, writs or directions including writs in
the nature of habeas corpus, mandamus, quo warranto,
prohibition and certiorari as may be considered necessary
for enforcement of the fundamental rights and in the case of
the High Courts, for other purposes as well. In view of the
express provision in our Constitution we need not now look
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back to the early history or the procedural technicalities
of these writs in English law, nor feel oppressed by any
difference or change of opinion expressed in particular
cases by English Judges. We can make an order or issue a
writ in the nature of certiorari in all appropriate cases,
and in, appropriate manner, so long as we keep to the broad
and fundamental principles that regulate the exercise of
jurisdiction in the matter of granting such writs in English
law."
(1) [1955] 1 S.C.R. 250,
160
It is therefore upon to us to issue a direction in the
nature of mandamus requiring the Authority to follow the law
as laid down by this Court in respect to the order of
renewal granted by it in accordance with S. 58 (1) (a). It
is true that where it is a case of discretion of an
authority, this Court will only quash the order and ask the
authority to reconsider the matter if the discretion has not
been properly exercised. But in this case, the discretion
is not absolute; it is circumscribed by the provision of s.
58(1)(a), which lays down a duty on the Authority which
grants a renewal to specify a period which is not less than
three years and not more than five years. The duty being
laid on the Authority which has in this case decided to
grant a renewal to specify a period not less than three and
not more than five years as the duration of the renewal, it
is in our opinion open to this Court to direct the Authority
to carry out the duty laid on it by s. 58 (1) (a) read with
s. 58 (2), when it has granted the renewal.
We therefore allow the petitions and quash that part of the
order complained against which specified the renewal of the
permits upto March 31, 1959, and direct the Regional
Transport Authority, Bangalore, to comply with the
requirements of the law as laid down in s. 58 (1) (a) read
with s. 58 (2) in the order of renewal made by it in favour
of the petitioners on December 15, 1958. The petitioners
will: get one set of costs from the Mysore Government Road
Transport Department which alone has contested these
petitions.
Petition No. 76 of 1959.
WANCHOO J.-This is a petition under Art. 32 of the
Constitution by certain transport operators in the State of
Mysore and raises a question as to the interpretation of s.
58(2) of the Motor Vehicles Act, No. IV of 1939 (hereinafter
called the Act.) The brief facts which are necessary for our
purpose are these: The petitioners were operating on the
basis of stage carriage permits on certain routes which are
under the control of the Regional Transport Authorities,
Bangalore and Kolar (hereinafter called the Authorities).
The routes
161
being inter-district routes, the permits are. issued by the
Regional Transport Authority, Bangalore, and are
countersigned by the Regional Transport Authority, Kolar.
That is why both have been made parties to the petition.
The permits of the petitioners were expiring on December 31,
1957, and were renewed upto March 31, 1958. Applications
for renewal were invited thereafter for three years from
April 1, 1958. Consequently the petitioner made
applications for renewal of their permits. It appears that
the Mysore Government Road Transport Department (hereinafter
called the Department) also applied for permits for the same
routes. The Department also wrote a letter each to the two
Authorities in which it pointed out that the Government of
Mysore was pursuing a policy of nationalisation of road
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transport services in the State and that it would be in a
better position to run the -services on these routes and
would be able to rationalise and co-ordinate the various
forms of transport and offer better service to the public.
It therefore requested that the permits of the petitioners
should not be renewed and that the Department was prepared
to take over the services from April 1, 1958. Though
meetings were held from May to December 1958, the
Authorities did not pass any orders on the applications for
renewal. It appears, however, that the applications of the
Department ’for grant of permits were dismissed in September
1958. The Department went up in appeal against this order
which was allowed in March 1959 and the Authorities were
directed to reconsider the applications . In the meantime
the Regional Transport Authority, Bangalore, ordered in
January 1959 that the applications for renewal should be re-
notified and this was done. Upon this, the Department wrote
again to the Bangalore Authority on February 20, 1959, not
to renew the permits of the petitioners. Eventually, the
Regional Transport Authority, Bangalore, met on March 29,
1959, and renewed permits relating to certain other routes
for three years while the applications of the present
petitioners were postponed. There was another meeting on
April 30, 1959, when the permits of the petitioners were
renewed
162
till September 30, 1959. It is this order which is being
challenged by the present petition. The petitioners case
is that they are entitled to carry on the business of
transport of passengers as a fundamental right
guaranteed to them under Art. 19(1(g) of the Constitution,
and that this right can only be restricted in the manner
provided by the Act which is a regulatory measure dealing
with motor vehicles. They contend that they were entitled
under s. 58 of the Act to renewal of their permits for at
least three years in case the Authorities decided to grant
renewal on the applications which they had made in January
1958 and in so far as the Authorities gave them renewal only
upto September 30, 1958, they were acting in contravention
of the Act and were thus committing a breach of their
fundamental right. They therefore pray that this Court
should come to their aid and protect their fundamental right
to carry on the business of transport in accordance with the
Act. The prayer which they actually made is somewhat
inartistic but in effect they want that the Authorities be
directed to renew their permits in accordance with the Act,
which requires that the renewal must be for a period of not
less than three years and not more than five years so far as
stage carriage permits are concerned.
The petition has been opposed by the Department and the main
contention on its behalf is that on a correct interpretation
of s. 58 of the Act it is open to a Regional Transport
Authority to renew a permit for any period it chooses to fix
and therefore the Authorities in this case were acting in
accordance with the law when they renewed the permits of the
petitioners upto September 30, 1959. It is further
contended that even if the Regional Transport Authority must
fix a period of not less than three years and not more than
five years, the only order that this Court should pass is to
quash the order dated April 30, 1959, renewing the permits
upto September 30, 1959, and direct the Authorities to
decide the renewal applications in accordance with the law
to be laid down by this Court.
163
This case is similar to Writ Petitions Nos. 54 and 75 of
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1959, in which judgment has been just delivered today and
raises the same two questions which have been raised there.
The only difference is that there no scheme prepared under
Chapter IV-A in connection with the routes with which we
are concerned here. We have considered the interpretation
of s. 58(2) read with s. 58(1(a) in Writ Petitions Nos. 75
and 54 of 1959 and the form of the order to be passed. For
reasons given in those petitions, we are of opinion that
this petition should be allowed.
We therefore allow the petition and quash that part of the
order complained against which specified the renewal of the
permits upto September 30, 1959, and direct the Authorities
to comply with the requirements of the law as laid down in
s. 58(1)(a) read with s. 58(2) in the order of renewal made
by them in favour of the petitioners on April 30, 1959.
The petitioners will get their costs, except hearing costs
as the hearing was common with Petition No. 75 of 1959, from
the Mysore Government Road Transport Department which alone
has opposed the petition.
Petitions Nos. 54, 75 and 76 of 1959.
KAPUR J.-In the circumstances of this case I do not propose
to give any opinion on the question whether in renewing a
permit the Regional Transport Authority had to do so for a
period of not less than three and not more than five years.
Assuming that it should have been so, what is the form of
order that this Court could and should make in a case like
the present. The petitioners’ prayer was as follows :-
" Wherefore your petitioners most humbly pray that the order
of the 2nd respondent dated 15th December, 1958, and be
quashed as illegal, arbitary, unreasonable, unconstitutional
and void and the 2nd respondent be directed to grant renewal
of your petitioners’ permit strictly according to law as has
been done in the case of all other operators in that region,
upto 31st March, 1961."
If the Impugned order is without jurisdiction then it is
liable to be quashed. If it is such that no reasonable
164
body could have given it then it must be deemed to be in
excess of jurisdiction and in that case also it is liable to
be quashed. The power of a superior court in such
cases is not that of an Appellate Authority
overriding the decision of the Administrative Tribunal-in
this case the Regional Transport Authority:Associated
Provincial Picture Houses, Ltd. v. Wednesbury Corporation
(1).
The Petitioners submitted that the Regional Transport
Authority be directed to grant renewal of the permits for a
period of three years; in other words what the petitioners
want is not only that the order of the Regional Transport
Authority be quashed but it should be substituted by the
order directing the Authority to act in a particular manner,
that is, to renew the permits for a period of not less than
three and not more than five years. By doing this this
Court will be directing an order in substitution of the
order passed and not merely quashing the order-made by the
Regional Transport Authority but also amending it. In
England the power of certiorari did not extend to ordering
an amendment of an order: The King v. Willesden Justices,
Exparte Utley (2). In that case a person was properly
convicted for an offence by the Justices but was erroneously
fined in a sum in excess of the statutory maximum and it was
held that the conviction was bad on the face of it and the
order must be quashed because unlike the Appeal Court a
court acting in its extraordinary prerogative jurisdiction
had no power to amend the order and all that could be
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decided in a case of that kind was whether the conviction
was good in law. In a number of other cases a similar view
was taken by the English Courts.
Even where the matter is one which falls under the power of
issuing a mandamus the order can only command the Tribunals
to hear and decide the particular matter and no writ will be
issued dictating, to them in what manner they are to decide.
This rule holds good even though the decision is erroneous
not only as to facts but also in point of law and although
the particular circumstances of the case are such that
(1) (1948) 1 K.B. 223.
(2) (1948) 1 K.B. 397.
165
there is only one way of performing the duty in question.
Halsbury’s Laws of England, 3rd Edition, Vol. 11, page 101,
paragraph 187. This principle was accepted in Veerappa
Pillai v. Raman &Raman Ltd.(1). Chandrasekhara Iyer, J.,
while delivering the judgment of this Court said at page
596:
" Further, it will be noticed that the High Court here did
not content itself with merely quashing the proceedings, it
went further and directed the Regional Transport Authority,
Tanjore, " to grant to the petitioner permit in respect of
the five buses in respect of which a joint application was
made origin. ally by the petitioner and Balasubramania
Pillai and that in case the above buses have been condemned,
the petitioner shall be at liberty to provide substitutes
within such time as may be prescribed by the authorities ".
Such a direction was clearly in excess of its powers and
jurisdiction".
In Basappa v. Nagappa (2) this case was referred to with
approval.
The petitioners relying upon two judgments of this Court
submitted that the impugned order was severable and it
should be severed and the portion which is not in accordance
with law should be excised and a direction given that the
tribunal should specify a period of not less than three
years and not exceeding five years. In my opinion this is
nothing more than substituting an order in place of the
order passed by the Regional Transport Authority itself. It
must be recognised that under Art. 32 this Court has the
power to enforce fundamental rights and a right under Art.
32 itself is a fundamental right but when this Court
exercises the power of judicial review in the matter of
enforcement of fundamental rights which are alleged to be
infringed because of some order passed by an administrative
Tribunal in the exercise of its jurisdiction this Court has
to proceed on certain principles and one of the recognised
principles is that:
"....... in the whole of administrative law the functions
that can be performed by judicial review
(1) [1952] S.C.R. 584. (2) [1955] 1 S.C.R. 250.
166
are fairly limited ". The role of the courts in this
field " is to serve as a check on the administrative branch
of government----a check against excess of power and abusive
exercise of power in derogation of private right ". The
judicial function is thus one of control: we may expect
" judicial review to check-not to supplant-administrative
action. "(Bernard Schwartz on American Administrative Law,
page 113).
The question is whether the powers given under Art. 32 are
such that this Court can direct the exercise of direction by
the administrative tribunal in the manner that this Court
would have exercised it. It is said that the tribunal would
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have ordered the renewal of the permits irrespective of
whether they were going to be for a period of not less than
three and not more than five years. There is slender basis
for this assumption and the fact that there was nationalisa-
tion in the offing do not give it much support. In giving
such a direction, as is proposed, this Court will be
substituting itself in place of the Regional Transport
Authority and acting as if it was the Authority itself which
is beyond the scope of judicial review.
Reliance was placed by the petitioners on Shewpujanrai
Indrasanrai Ltd. v. The Collector of Customs (1). In that
case the Collector of Customs purporting to act under
section 167(8) of the Sea Customs Act ordered (1)
confiscation of the smuggled gold (2) in lieu thereof an
option to pay fine of Rs. 10 lakhs and (3) in addition to
pay proper customs duty and other charges leviable thereupon
and (4) imposed a condition that the release of gold will be
subject to the production of a permit from the Reserve Bank
of India within a period specified in the order. It was
conceded that ’the Collector had no power to impose the
last, two conditions and it was contended that the order
being a composite and integrated whole, part of it was
within jurisdiction of the Collector and part of it without
and the superior court must quash the whole order as being
in excess of jurisdiction. Relying upon
(1) [1959] S.C.R. 821.
167
the judgment of this court in R. M. D. Chamarbaugwalla v.
Union of India(1) this Court was of the opinion that there
was no difficulty in enforcing the order even after excising
the two illegal conditions. S. K. Das, J., in delivering
the judgment of the Court said:-
" There is no legal difficulty in enforcing the rest of the
impugned order after separating the invalid conditions
therefrom; .For these reasons we agree with the Division
Bench of the High Court that the invalid conditions imposed
by the Collector in this case are severable from the rest of
the impugned order."
But these observations have to be read in the context of the
facts and the decision of the case The King v. Willesden
Justices, Ex parte Utley (2) was cited but was not applied
because of the observations of this Court in T. C. Basappa
v. T. Nagappa & Anr. (4) to which I shall refer presently.
The main ground on which the order of severability was
passed was that the appellant in that case had not merely
asked for a writ of certiorari but also for a writ of
mandamus and prohibition and that the prayers were neither
unnecessary nor mere surplusages and they were appropriate
for the purpose of getting rid of conditions imposed by the
Collector for the release of gold. It was held in that case
that if a decision of an inferior court or tribunal was
partly within and partly without its jurisdiction,
prohibition will lie against what is in excess of juris-
diction and reference was made to Halsbury’s Laws of
England, 3rd Edition, Vol. 11, page 116, paragraph 216 and
also to Shree Ram Krishna Dalmia v. Shri Justice S. R.
Tendolkar & Ors. (4) where the principle of severability was
applied. In Shewpujanrai’s case(,’) two passages from
Basappa v. Nagappa(3) at page 257 were quoted with approval.
After a review of these various authorities S. K. Das, J.,
said at page 844:-
" Therefore, we do not see any insuperable difficulty in the
present case in prohibiting respondents 1 to 3 from
enforcing the two invalid conditions
(1) [1957] S.C.R. 930.
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(3) [1955] 1 S.C.R. 250.
(2) (1948) 1 K.B. 397.
(5) [1959] S.C.R. 821,
(4) [1959] S.C.R. 279,
168
which the Collector of Customs had imposed for release of
the gold on payment of the fine-in lieu of confiscation, and
the time limit of four months fixed by the Collector
must accordingly run from the date of this order."
It will be seen therefore that in Shewpujanrai’s case (1)
although this Court was of the opinion that the powers of
the Court are wider than those of the Courts in England yet
in the exercise of those powers of issuing writs the broad
and fundamental principles that regulate the exercise of
jurisdiction granting such writs in English law will be
observed. The case is no authority for saying nor did it
lay down that in the matter of judicial review this Court
will proceed on different principles than the Courts in
England. The main decision in the case proceeded on the
ground that a writ of prohibition was prayed for, in
granting which it was open to the Court to issue a writ
quashing that portion which was in excess of jurisdiction.
Besides, in that case, by severing the illegal conditions
which had been imposed the order of the Collector still
remained one enforceable and not a truncated order which
would be incomplete by the excision of those two conditions.
Can it be said in the instant case that the impugned order
can remain one whole integrated and intelligible order by
taking away the condition in regard to the period and could
it fall within the rules laid down in Chamarbaughwalla’s
case (2 ). The 6th condition there laid down at page 951 was
that if after the invalid portion was expunged what remained
could not be enforced without making alterations and
modifications therein then the whole must be struck down.
Can it be said as it could be said in Shewpujanrai’s case
(1) that the order is enforceable without the period and
without making a substituted order in place of the order
made by the -Regional Transport Authority. In my opinion it
cannot be.
Then I come to the consideration in T. C. Basappa v. T.
Nagappa (3). That was a case which arose in appeal against
the decision of the Mysore High Court
(1) [1959] S.C.R. 821. (2) [1957] S.C.R. 930.
(3) [1955] 1 S.C.R. 250.
169
given under Art. 226 in regard to an election matter where
the Election Tribunal had found certain issues in favour of
the petitioner and had declared the election to be void and
the respondent filed an application under Art. 226 for a
writ or direction in the nature of certiorari which was
allowed. The question raised in this Court was that the
Tribunal whose order had been quashed had neither acted
without jurisdiction nor was there any error apparent on the
face of the record and the two questions which arose for
decision were (1) what was the extent of the power of the
High Court in exercise of its powers under Art, 226 to grant
a writ of certiorari to quash the adjudication of an
Election Tribunal and (2) whether such grounds did exist.
After reference to the principles on which superior courts
in England act in issuing writs of certiorari and how the
power had developed, Mukherjea, J. (as he then was) observed
that under the Constitution of India new and wide power had
been conferred on the High Courts of issuing directions,
orders or writs primarily for the enforcement of fundamental
rights and also included the power of issuing such
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directions for any other purpose. At p. 256 the learned
Judge said:-
In view of the express provisions in our Constitution we
need not now look back to the early history or the
procedural technicalities of these writs in English law, nor
feel oppressed by any difference or change of opinion
expressed in particular cases by English Judges. We can
make an order or issue a writ in the nature of certiorari in
all appropriate cases and in appropriate manner, so long as
we keep to the broad and fundamental principles that
regulate the exercise of jurisdiction in the matter of
granting such writs in English law." (Italics are mine).
It will thus be seen that in that case this court did not
hold that the principles that regulate the exercise of
jurisdiction in the matter of granting such writs in English
law were not to be keptin view. As a matter of fact the
learned Judge then gave quotations from
22
170
various English decisions e.g. Rex v. Electricity
Commissioners (1); King v. Nat Bell Liquors Limited( 2). At
page 258 a passage from the judgment of Morris, L. J.,
in Rex v. Northumberland Compensation Appellate
Tribunal(3) was quoted with approval and then a passage
from the judgment of Chandrasekhara Iyer, J., in Veerappa
Pillai v. Raman & Raman Ltd. (4) at p. 594
" However extensive the jurisdiction may be it seems to us
that it is not so wide or large as to enable the High Court
to convert itself into a Court of Appeal and examine for
itself the correctness of the decision impugned and decide
what is the proper view to be taken or the order to be made
was quoted. After referring to these various passages
Mukherjea, J. (as he then was) said :-
These passages indicate with sufficient fullness the general
principles that govern the exercise of jurisdiction in the
matter of granting writs of certiorari under article 226 of
the Constitution. "
It cannot therefore be said that in Basappa’s case this
Court said or intended to say that a superior court acts in
a manner different from that in which the courts acted in
England. All it intended to say was that in that case on
the facts and circumstances found by the High Court a writ
of certiorari was rightly issued. This Court did not say
that in issuing a writ of certiorari a superior court could
substitute orders or direct what the order should be. In
other words judicial review extends to a check on
administrative tribunals and not to supplant administrative
action. In my opinion the power of this Court only extends
to quashing and not to substituting an order in place of
what an administrative tribunal has done or to direct what
it should do. Reference was made by the learned Solicitor
General to Kochunni v. State of madras (6) in which certain
observations were made as to the power of this Court to
frame its writs or orders to suit the exigencies of the
case. That was not a case of judicial review of
administrative action but of the exercise of
(1) (1924) 1 K.B 171 at p. 205.
(2) (1922) 2 A C. 128 at p. 156.
(3) (1952) 1 K.B. 338 at P. 357.
(4) [1952] S.C.R. 584.
(5) [1955] S.C.R. 250.
(6) A.I.R. (1959) S.C 725.
171
the powers under Art. 32 in a case where the validity of an
Act eo instanti abridging the petitioner’s rights under Art.
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19(1)(f) was in dispute. The decision, the observations and
the rule laid down must be read in the context and in the
circumstances of that case. United Motors Transport Co. v.
Sree Lakshmi Motors Transport Co., Ltd. (1), also was not a
case of judicial review but an appeal from a decree and does
not affect the question now before us.
The petitioners applied to the High Court under Arts. 226 &
227 of the Constitution against the order made by the
Regional Transport Authority but that was dismissed and a
certificate for appeal was also refused by the High Court.
As to what is the legal effect of the order of the High
Court which has become final by its not being appealed
against, I do not propose to discuss in this case as we have
not had the advantage of its being debated at the Bar.
In my opinion no order commanding the Regional Transport
Authority as to what order it should pass and what period
should be substituted in place of the order passed by the
Regional Transport Authority can be made by this Court and
all that this Court can do is to quash the order and leave
it to the Regional Transport Authority to reconsider the
matter and exercise its discretion keeping in view the law
as laid down by this Court. As the petitioners’ success
would be partial, I leave the parties to bear their own
costs in this Court.
ORDERS OF COURT.
In Petitions Nos. 54 and 75 of 1959.
In accordance with the opinion of the majority, we allow the
petitions and quash that part of the order complained
against which specified the renewal of the permits upto
March 31, 1959, and direct the Regional Transport Authority,
Bangalore, to comply with the requirements of the law as
laid down in s. 58 (1)(a) read with s. 58(2) in the order of
renewal made by it in favour of the petitioners on December
15, 1958. The petitioners will get one set of costs from
the Mysore
(1) A.I.R. (1945) Cal. 260.
172
Government Road Transport Department which alone has
contested these petitions.
In Petition No. 76 of 1959.
In accordance with the opinion of the majority, we allow the
petition and quash that part of the order complained against
which specified the renewal of the permits upto September
30, 1959, and direct the Authorities to comply with the
requirements of the law as laid down in s. 58(1)(a) read
with s. 58(2) in the order of renewal made by them in favour
of the petitioners on April 30, 1959.
The petitioners will get their costs, except hearing costs
as the hearing was common with Petition No. 75 of 1959, from
the Mysore Government Road Transport Department which alone
has opposed the petition.