Y. MAHABOOB SHERIFF AND OTHERS versus MYSORE STATE TRANSPORT AUTHORITY

'959 Shrinivasrt Reddy v. The State of Mysore Kapur].

x959 Nov~mber 6

to the Department. We order parties to bear their own costs of this petition taking into account that Petition No. 117 of 1959 filed by the petitioners with respect to the validity of the scheme has been with-drawn by them at late stage and we have directed parties to bear their own costs of that petition also.

Y. MAHABOOB SHERIFF AND OTHERS

v. MYSORE STATE TRANSPORT AUTHORITY AND OTHERS

(B. P. SINHA, C.J., JAFER IMAM, J. L. KAPUR,

K. N. WANCHOO and K. C. DAS GUPTA, JJ.)

Motor vehicles-Stage carriage per1nit-Period of renrwal-Duty of Transport Authority-Motor Vehicles Act, I939 (IV of I939), as amended by Act IOO of I956, s. 58.

Suh-section (r)(a) of s. 58 of the Motor Vehicles Act, 1939, provides,-

" stage carriage permit or contract carriage permit other than temporary permit issued under s. 62 shall be effective without rene\\[1]al 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,-

" permit may be renewed on an application made and dis· posed of as if it were an application for 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 renewal of them. The Tran,port 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 int:ended to nationalise the transport services. The Authority, however, dis-missed the applications of both the contending parties, but, on appeal, its orders were set aside and the ma1ter was remanded for fresh decision. 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 qy the High Court. at the instance of the petitiJners. The Authority passed orders renewil)g the permits of the petitioners for period of one year from April I, 1958, to March 31, 1959· Appeals against the said orders having proved abortive the petitioners appiicd to the

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High Court under Arts. 226 and 227 of the Constitution and x959 those applications were summarily dismissed and certificates to appeal to this Court refused. The petitioners thereupon applied Mahaboob Sheriff to this Court under Art. 32 of the S::onstitution. The question v. for determination was whether on proper construction of Mysore State • sub-s. (1)(a) and, sub-s. (2) of s. 58 of the Act, read together, the Transport Authority period of renewal was to be the same as provided for the grant of permits under the former and the Authority in renewing permit was bound to specify the period of such renewal. It was contended on behalf of the Department that; even supposing that 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 ques-tion 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 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 permit under sub-s. (1)(a) thereof and the Regional Transport Authority, in eisercising its discretion to grant renewal where it chose to do so, must specify the. r;eriod of renewal accordingly. The words "without renewal" occurring in sub-s. (1)(a) do not signify 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 mis-apprehension 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, direction in the nature of ma1idamus must issue requiring the Authority to specify the period of renewal in accordance with the law as laid down J:>y 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 ard leave it to the tribunal to reconsider the matter and to e> ercise its

r959 jurisdiction keeping in view the law laid down by the Court. In issuing such orders the courts would act in consonance with the Mahaboob Sheriff broad and fundamental principles governing the granting of writs v. in English Law. · Myso" p tA Stats th Stats th th .t onsequent y, even assuming I · ti iat in renewing · · permit · t rans or u ori Y Regional Authority had to do so for 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.

T Myso" p tA Stats th Stats th th .t rans or u ori Y

Associated Provincial Pictur< Houses, Ltd. v. Wednesbury Corporation, (1948) l K.B. 223, Tlte King v. Willesden Justices, Ex Parle Utley, (1948) l K.B. 397, Veerappa Pillai v. Raman and Raman Ltd., [1952) S.C.R. 584 and Basappa v. Nagappa, [r95'5) I S. C.R. 250, referred to.

Shewpujanrai Indrasanrai Ltd. v. The Collector of Customs, [r959) 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.LR. t959 S.C. 725 and United Motors Transport Co. v. Sree Laltshmi Motor Transport Co Ltd. A.LR. 1945 Cal. 260 distinguished.

ORIGINAL JURISDICTION: Petitions Nos. 54, 75 and 76 of 1959.

Petitions under Article 32 of the Constitution of India for enforcement of ]'undamental Rights.

G. ](. Daphtary, Solicitor.General of India, and

B. R. L. Iyengar, for the petitioners.

H. N. Sanyal, Additional Solicitor-General of India, R. Gopalakrishnan and T. 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 separate judgment. Petitions Nos. 54 and 75 of 1959 . Wanchoo J. • WANCHOO J.-These are two connected petitions ' nnder 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.

They held stage carriage permits for various routes, · which were expiring·on March 31, 1958 .. They there-

. fore applied for the renewal of the permits on various Mahaboob Shmff dates in January 1958, as required under the law.. M v. 51 1 N ormally, their · app I" 10at10nss ou · Id ave een ispose · TransportAuthority ysore of before March 31, 1958. However, on February 1, -the.Mysore Government Road Transport Departme!).t Wanchoof. (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 applica-tions were pending. The Department followed ~his up by 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 submit-ted 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, I, 1958. It was also pointed out that the Government of Mysore had been pursuing the policy of nationalisation of road transport services with 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 Depart-ment resulting in rationalisation of the routes in the Anekal pocket in which at that time there werCl. 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 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 dismis-sed the petitioners' applications for renewal as well as the Department's for grant of fresh permits. We must say that this appea.rs to be curious order, for the result of this order strictly would be that no stage carriages would be able to ply on these routes. How-ever, both parties appealed on September 91 1958, against the orders of August 11. In the meantime,

150 SUPREME·COUB.T ·REPORTS [1960 (2)]

r959 scheme under s. 680 of Chapter IV-A of the Act was Mahaboob Sheriff publishe~. This scheme was appr?ved on October 24, . v. 1958, while the appeals were pendmg. On October 30, M_"o" State ·the appeals of both parties were allowed and the Transport Authority mn,tter wn,s remanded to the Authority for fresh -disposn,l. In the meantime, however, the petitioners Wanchoo ]. had applied to the High Court for quashing the scheme and it was quashed by the High Court on De-cember 3, 1958. Thereafter the Authority met again and passed orders renewing the permits of the petition-ers for period of one year from April 1, 1958 to March 31,.1959. The petitionem 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 certificate to enable them to appeal to this Court wn,s refused on March 30, 1959. There-after the present petitions were filed in this Court. In the meantime, however, 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 mn,terial for purposes of these petitions but we may as well mention it to complete the narrative. The Department applied for permits under s. 68]' of the Act on April 24, 1959. On April 30, 1959, the petitioners challenged the new scheme before tho High Court of Mysore by writ petition. That petition was however dismissed on June 1, 1959. Thereafter they ea me 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 period of four months or upto the time the Department was granted permits under s. 68.l!', whichever was earlier. Consequently on June 23,

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1959, the Authority met and granted permits to the r959 Department under s. 68F and rejected the renewal -" . app 1ICat10ns [. ]· o t pe t't' 1 10ners w h' 10 ·h were sa1 ·d t .o ave Mahaboob S v. e•iff been filed under protest. On June 24, 1959, the Mysnre State transport services in pursuance of the scheme were Tran;portAuthority inaugurated by the Chief Minister. On the same day -the petitioners 'applied to the High Court by writ Wanchoo f. 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 peti-tioners on the ground that the relief granted would be short-lived and dismissed the writ petition. The petitioners then applied for certificate to enable them to appeal to this Court and that application is still pending. Thereaft.er the Department applied for temporary permits which were granted on July 16, 1959. Another writ petition was filed on July 24, 1959, by the petitioners challenging the grant of temporary 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 Sep~ember 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 fundamental right ' guaranteed to them under Art. 19(l)(g) of the Constitu-tion, and that this right can only be restricted in the manner provided by the Act which is 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 breach of ttleir fundamental right. They

1959 therefore pray that this Court should come to their Mahaboob Sheriff aid and. protect their fun_damental right _to carry on v. the busmess of transport m accordance with the Act. My'°" state The prayer which they actually made is somewhat Transport A1<thority inartistic hut in effect they want that the authority be directed to renew their permits in accordance with the Wan,hoo .I· Act, which requires that the renewal must be for 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 Govern-ment Road Transport Department. No appearance has been put in on behalf of the first two. The peti-tions are being opposed by the third respondent, namely, the Department; and the main contention on · \ its behalf is that on correct interpretation of s. 58 of

the Aet it is open to the Authority to renew permit for any period it chooses to fix and therefore it was aeting in accordanee with the law when it fixed the period at one year. It is further contended that even if the Authority must fix period of not less than three years anrLnot 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 transport vehicle from using it except in accordance with the conditions of permit granted or counter-,signed by 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 I959 and 46, which provide for making of an applicatfon Mahaboob Sheriff for permit and the contents of such an application. v. Section 47 sets out matters to which Regional Trans-Mysore State port Authority shall have regard in considering the Transport Authority application for stage carriage permit. Section 48 gives power to the Regional Transport Authority to Wanchoo J. grant 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 permit .. We are not concerned in these cases with ss. 49 to 56, which deal with other kinds of tr~nsport vehicles. Section 57 provides the procedure in applying for and granting of permits. Then comes s. 58, which deals with duration and rene-wal of permits and is in these terms :

"58(l)(a)-A stage carriage permit or contract

carriage permit other than 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 p~blic carri-

er's permit other than temporary permit issued , under s. 62 shall be effective without renewal for period of five years.

(2)-A permit may be i:enewed on an application made and disposed of as if it were an application for peJ;mit :

Provided that the application for the renewal of permit shall be made-:-

( a) in the case of 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 ne:v applications for permits •

'959 (3) .•.•.... ,, . Sh ff It will be seen from this scheme of the Act that the Ma 0~. "' duration of permit is not one of the conrlitions Myso" State attached to it but is specifically provided for in s. 58. TransportAuthoritySub-s. (l)(a) thereof comes into play after the Autho-rity has decided to grant permit and lays down that wa'""00 f. stage carriage permit or contract carriage permit other than 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 duty on the Authority .after it has decided to grant 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 permit. Then comes sub-s. (2), which lays down that permit may be renewed on an application made and disposed of as if it were an application for 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 pplica-tion for permit and therefore the period provided under s. 58(1) (a) for permit would also govern the period for which the renewal should be granted. On the i>ther hand, it is contended for the Depart-ment that sub-s. (2) only refers to the procedure for gral!ting permits and the duration provided for sub-s. (l)(a)being not matter of procedure will not apply to renewal. It is conceded that there is no other provision in the Act which lays. down the period for which renewal should be made. But it is urged that this means that it is open to the Authority to fix any reasonable period for renewal. Reliance in this connection was placed in particular on the words " without renewal " appearing in s. 58(1) and also on decision of this Court in V. 0. K. Bus Service Ltd. v. The Regional Transport Authority, Coimbatore (1). That case however did not deal with the question before us but with different question altogether. The question there was whether

(1) [19~7) 1 S.C.R. 66J .

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renewal amounted to grant of fresh permit or r959 was merely continuation of the original permit. Mahaboob Sheriff This Court held that the renewal was continuation v. of the original permit. It had no occasion then to Mysore State deal with the question specifically before us, namely, Transport Authority whether renewal should also be for the same period Wanchoo /. as provided in s. 58 (l)(a).

Let us therefore turn to the contention based on the words "without renewal" appearing in s. 58 (l)(a). \ It is urged that these words clearly indicate that s. 58(l)(a) applies only to the first grant of the permit and cannot in any circumstances apply to renewal of the permit. As we have already said, s. 58(l)(a) specifically deals only with the grant of permit and not with renewal. The words "without renewal" ' appearing in that sub-section only signify that . in counting the pe!iod of permit renewals should be disregarded. It was necessary to put in these words to meet possible contention arising out of the fact that renewal only amounts to continuation of the original permit. The effect of these words is that in considering the period of 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(l)(a). For example, 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 contra-vened s. 5S (l)(a). These words therefore were neces-sary to meet ·this contention and · are no indicatioa that the period mentioned in s. 58(l)(a) does not apply to renewals. We may in this connection refer to the language of s. IO where· also the same two words occur, i.e. :

" 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

z959 without renewal for period of three years only, from the date of the issue of the licence or, as the Maflabo~b Sheriff case may be, from the date with effect from which Mywe state the licence is renewed under s. 11." Transport Autho>ity Thus, though the earlier part of s. 10 specifically deals with issue and qmewal of driving licences, the words Wanchoo f. •· 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 pro-vides for renewals also for three years and that is not provided in s. 58(l)(a). That is undoubtedly so. But the reason why s. 58(l)(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 it were an application for 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 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 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 permit must mean that all incidents which apply to permit shall also apply to renewal application. One of the incidents which applies to permit is that the Authority is enjoined by sub-s. (l)(a) of s. 58 to indicate 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 renewal and the Authority must indicate when granting renewal 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 petition-ers as to the effect of s. 58(2) is correct. There is no ~ other provision in the Act which fixes the duration of renewal. 1 t could hardly be the intention of the

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legislature that the duration of the renewal should be x959 left entirely port Authority, particularly when to the discretion of the the Regional Trans-legislature took M b--;Sh 0~. eri 'ff care to fix the duration- for the permit itself. It is Mysore Stitte urged that the legislature intended that the duration Transport Authority of the renewal should be left to the Authority which would prescribe reasonable period, which may even Wanchoo J. be less than three years. If that was so, it would be equally open to the Authority to specify period for more than five years which it may consider reason-able. We do not think that this was the intention of the legislature and the reason why no other prQvision • was made for the duration of renewal was that the legislature intended by these words in s. 58(2) that the renewal would be for such period as was prescrib-ed in s. (l)(a) for fresh permit. It is not disput-ed that the effect of s. 58(2) is that the consider-ations 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 renewal as for 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(l)(a) as applying to renewal along with all other considerations that apply to the grant of permit. S. 58(2) lays down that renewal application shall be made and disposed of as if it were an applic-ation for permit and we think that all that applies to the grant of permit would also apply to the grant of renewal. One of the provisions which apply to the grant of permit is s. 58(l)(a) relating to the duration of permit and that must in our opinion on the words of s. 58(2) apply to the duration of renewal. ,

It may also be mentioned that there were amend-ments of s. 58 by various State legislatures by which the duration of 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 througli and the Central

r959 legislature did not think it fit to give power to the State --. legislatures to i·educe the period below three years in Mahaboob Shedff the case of permit. If it were intended that Myso;; State permit may be granted for less than three years and Transport Authority renewal may be made also for less than three years, we would have expected some provision to that effect Wanchoo J. in the Amending Act of 1956, for the Central legis-lature could not be unware of the amendments made by the various State legislatures. In the circum-stances we are of opinion that the duration of permit under s. 58( 1 )(a) being not less than three years and • more than five years, the same pp lies to renewal. 'Ve,' therefore, hold that reading ss. 58(1)(a) and 58(2) together, renewal must also be governed by the same provision which governs the duration of permit.This brings us to the question of relief to be grant-ed 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 Authoritv 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 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 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 statute untouched were laid down by this Court in R. M. D. Charnarbaugwalla v. The Union of India ([1]), and the first principle is whether the legislature would have enacted tho 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. 'l'he Collector of Custorns and Others ([2]), where part of the order of the Collector of Customs was quashed. The question therefore resolves into this: l'\'ould 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.

the period of permit to below three years? ·Look-r959 ing at the facts of these cases wlfich we have set out Mahaboob Sheriff earlier, it is to our mind o vious t at t ut ority v. would have granted renewal in the circumstances of Mysore stats these cases when it did so in December 1958. The pre- Transport Authority vious permits in these cases had expired on March 31, 1958, and the petitioners had been plying their stage Wanchoo I carriages right up to the time when the order was passed. on December 15, 1958; they could not do so . without permit in view of s. 42 of the Act. There-fore, renewal in these cases was certain when the order was passed on December 15, 1958. In the circum-stances 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 techni-cal rules relating to issue of writs by the English Courts. In T. 0. Basappa v. T. Nagappa and Another (1), 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, manrla-mus, 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 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 writ in the nature of certiorari in all appropriate" cases and in appro-_priate manner, so long as we keep to the broaq and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law." · .

\1) [19,?~] 1 S.C.R, 2,:;o.

r959 It is therefore upon to us to issue direction in the Mahaboo; Sheriff nature of mandamus requiring the Authority to follow v. · the law as laid down by this Court in respect to the Mysore State order of renewal granted by it in accordance with Transport Authority s. 58 (1) (a). It is true that where it is case of discre-tion of an authority, this Court will only quash the Wamhoo f. 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(l)(a), which lays down duty on the Authority which grants renewal to specify 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 renewal to specify 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, Hl59, and direct the Regional Transport Authority, Bangalore, to comply with the requirements of the law as laid down in s. 58 (1) (a) read withs. 58 (2) in the order of renewal made by it in favour of the petitioners on Decem-ber 15, 1958. The petitioners will; get one set of costs from the Mysore Government Road Transport Depart-ment which alone has contested these petitions.

Petition No. 76 of 1959.

W ANCHOO ;J.-This is petition under Art. 32 of the Constitution by certain transport operators in the State of Mysore and raises question as to the inter-pretation of s. 58(2) of the Motor Vehicles Act, No. IV of 1939 (hereinafter ca'lled 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

S.C.R. SUPREME COURT REPORTS

being inter-district routes, the permits are issued. by 1959 the Regional Transport' Authority, Bangalore, and are countersigned by the Regional Transport Authority, Mahabo~~ Sheriff Kolar. That is why both have been made parties to Mysore State the petition. The permits of the petitioners were Transport 4uthority expiring on-December 31, 1957, and were renewed upto -March 31, 1958. Applications for renewal were invited Wanchoo .f. thereafter for three years from April 1, 1958. Con-sequently the petitioner inade applications for renewal of their permits .. It appears that the Mysore Govern-ment Road Transport Department (hereinafter called the Department) also applied for permits for the same routes. The Department also wrote letter each to th~ two Authorities in which it pointed out that the Government of Mysore was pursuing policy of ·nationalisation of road transport services in the State and that it would be in 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 request-ed 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 wei;it 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, Bangali:>re, ordered in January 1959 that the applications for renewal should be re-notified and this was done. Upon this, the Depart. ment wrote again to the Bangalore Authority on February 20, 1!)59, not to renew the permits of the petitioners. Eventually, the Regional Transport Au tho· rity, 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

'959 till September 30, 1959; It is this order which is being Mahab:-;; Sh"iff challenged by the present petition. The petitioners v. case is that they are entitled to carry on the business Mysore State of transport of passengers as fundamental right TransportAuthority guaranteed to them under Art. 19(1)(g) of the Consti-tution, and that this right can only be restricted in Wanchoo l · the manner provided by the Act which is 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 applic-ations 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 breach of their fundamental right. They therefore pray that this Court should come to their aid and protect their funda-mental 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 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 correct interpretation of s. 58 of the Act it is open to Regional Transport Authority to renew permit for any period it chooses to fix and therefore the Autho-rities 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 period of not less than three years and not more than five years, the only order that this Cotirt 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.

This case is similar to Writ Petitions Nos. 54 and 75 r959 of 1959, in which judgment has been just delivered . . . . · h" Mahaboob Sheriff today and raises the same two quest10ns w ic ave . v. been raised there. The only difference is that there is Mysore State no scheme prepared under Chapter IV-A in connection TransportAutkority 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 i;enewal of the permits upto September 30, 1959, and direct the Authorities to comply with the requirements of the law as laid down ins. 58(l)(a) read with s. 58(2) in the order of renewal made qy 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 bas opposed the petition.

Petitirms Nos. 54, 75 and 76 of 1959 .

. ,KAPUR J.-In the circumstances of this case I do riot propose to give any opinion on the question whether in renewing permit the Regional Transport Authority had to do so for 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 case like the present. The petitioners' prayer was as follows :-

Kapur J.

"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

1959 body could have given it then it must be deemed --to be in excess of jurisdiction and in that case also it Mahaboob Sher;p· is liable to be quashed. The power of superior court Myw~; State in su9h_ cases is n~t. that of an Appella.te A:ithorit,Y TfansportAnt1w;1y overndmg the dec1s10n of the Admm1strat1ve Tri-bunal-in this case the Regional Transport Authority: Kapur J Associated Provincial Picture Houses, Ltd. v. Wednes--bury Corporation(').

The Petitioners submitted that the Regional Trans-port Authority be directed to grant renewal of the permits for 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 particular manner, that is, to renew the permits for 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 amend-ing it. In England the power of certiorari did not extend to ordering an amendment of an order: The King v. Willesden Justices, Ex parte Utley('). In that case person was pro,perly convicted for an offence by the Justices but was erroneously fined in 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 court acting in its extra'tlrdinary prerogative jurisdic-tion had no power to amend the order and all that could be decided in case of that kind was whether the conviction was good in law. In number of other _cases similar view was taken by the English Courts.

Even where the matter is one which falls under the -power of issuing rnandarnus the order can only command the Tribunals to hear aod decide the parti-cular 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

S.C.R. SUPREME COURT REPORTS

there is only one way of performing the duty in ques-1959 tion. Vol. 11, page 101, Halsbury's paragraph Laws of England, 187. This principle was 3rd Edition, M 0~. ~. Sh .., ~! accepted in Veerappa Pillai v. Raman &Raman Ltd.([1]). Mysore State Chandrasekhara Iyer, J., while delivering the judgment TransportAuthority of this Court said at page 596 :

1959 Sh ~! 0~. ~. .., ~! Mysore State J{apur ].

"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 joint application was made origin-ally by the petitioner and Balasubramania Pillai and that in case the above buses have been condemn-eq, the petitioner shall be at liberty to provide substitutes within such timf) as may be prescribed by the authorities". Such 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 sever. able and it should be severed and the portion whicp is not in accordance with law should be excised and • direction given that the tribunal should specify 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 right under Art. 32 itself is fondamental right but when this Court exercises the power of judicial review in the matter of enforcement of fundap:iental 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] I S.C.R. ::150,

are fairly limited". The role of the courts in this field " is to serve as 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

."llr! ahabooh Sheriff v.

Mysore State Transport uehority

Kapur].

Law, page 113).

The question is whether the powers given under Art. 32 are such that this Court can direct the exer-cise of direction by the administrative tribunal in the manner that this Court would have exercised it. It is. said that the tribunal would have ordered the renewal of the permits irrespective of whetlier they were going to be for 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 direction, as is proposed, this Court will be substituting itself in place of the Regional Trans-port 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 Shewp-ujanrai 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 order-ed (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 condition that the release of gold will be subject to the production of permit from the Reserve Bank of India within 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 composite and integrated whole, part of it was within jurisdiction of the Collector and part of it with-out and the superior bourt must quash the whole order as being in excess of jurisdiction. Relying upon

(1) [1959] S.C.R. 821.

S.C.-R. SUPREME COURT REPORTS t> 167 •• the judgment judgment of this this court in in R. M. D. Ohamarbaug-M. D. Ohamarbaug-

the judgment judgment of this this court in in R. M. D. Ohamarbaug-M. D. Ohamarbaug-walla v. Union of I ndia(1) this Court was of the opinion · t at there was no difficulty in en £ orcmg t. or er even after excising the two illegal conditions·. S. K. Das, J., in delivering the judgment of the Court said:-

Mahaboob Sheriff v.

Mysore State TransportAuthority

" There is no legal difficulty in enforcing the rest of the impugned order after separating the invalid conditions th@refrom ; . . . 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."

Kaput].

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. 0. 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 writ of certiorari but also for writ of mandamus and prohibition and that the prayers were neither unneces-sary 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 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([5]) two passages from Basappa v. Nagappa(s) at page 257 were quoted with approval. After review of these various authorities S. K. Das, J., said at page 844 :-

. " Therefore, we do not see any insuperable diffi-culty in the present case in prohibiting respondents 1 to 3 from enforcing the two invalid conditions (1) [1957] S.C.R. 930. (3) [1955] r S.C.R. 250. t2) t1948) I KB. 397. (4) [1959] S.C.R. 279.

(,s) [1959) S.C.R. 821,

168 ~ SUPREME COURT REPOR [1960 (2)) '959 which the Collector of Customs had imposed for release of the gold on payment of the fine in lieu of M ahaboob Sheriff v. confiscation, and the time limit of four months fixed My,m·e state by the Collector must accordingly run from the date TransportAuthority of this order."

It will be seen therefore that in Shewpujanrai's case(') Kapur]. 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 regul-ate 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 judiciar review this Court will proceed on different principles than the . Courts in England. The main decision in the case proceeded on the ground that writ of prohibition was prayed for, in granting which it was open to the Court to issue 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 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 Ohamarbaughwalla's case ([2]). The 6th condition there laid qown 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 Shewpujan-rai's case ([1]) that the order is enforceable without the ·period and without making 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. 0. Basappa v. T. N agappa ('). That was 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] l S.C.R. 250.

S.C.R. SUPREME COURT REPORTS • under Art. 226 in 226 in to an an election matter

given· under Art. 226 in 226 in regard to an an election matter 1959 where the Election Tribunal had found cert.a.in issues M ahaboob Sheriff in favour of the petitioner and had declared the elec-v. tion to be void and the respondent filed an application Mysore State under Art. !::26 for writ or direction in the nature ofTransportAuthority certiorari which was allowed. The question raised in this Court was that the Tribunal whose order had Kapur]. been quashed had neither ·acted without jurisdiction nor was th.ere 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 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 issuhJg writs of certiorari and how the power had developed, Mukher-jea, J. (as he then was) observed that under tqe Con-stitution 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 directions for any other purpose. At p. 256 the learned Judge said:-

"In view of the express provisions in our Consti-tution 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 parti-cular cases by English Judges. We can make an order or issue 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 jurisdictio.n in the matter of granting such writs in English law." (Italics are m.ine).

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 matter of fact the learned Judge then gave quotations from

'959 various English decisions e.g .. Rex v. Electricity Com-Muhobooh 51.,,1ff missioners ([1]); King v. Nat Btll Liquors Lim~ted ('). At v. page 258 passage from the judgmrnt of Morris, L. J., Myme State in Rex v. Northumberland Ccmpensation Appellate TrnnsJ,ortAutho.ity Tribunal(') was quoted with approval and then pasoage from the judgment ofChandrasekhara Iyer, J., Kapur J. in Veerappa Pillai v. Raman & Raman Ltd.(') 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 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 ho 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 th11t in Basappa's case(') this Court said or intended to say that superior court acts in 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 writ of certiorari was rightly issued. This Court did not say that in issuing writ of certiorari superior court could substitute orders or direct what the order should be. In other words judicial review extends to 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(') 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. Th"t was not ~ase of judicial review of administrative action but of the exercise of

(4) [1051] S.C.R. 584.

( 1) ( TQ24).I K.B 171 at p. 205. (2) 11922) 2 AC. 128 at p. 156.

(51 [19)5] S.C.R. 250.

(3) , 1952) 1 K.B. 338 at p. 3o;7.

(6) A.LR. \19591 S.C 725·

S.C.R. SUPREME COURT REPORTS

the powers under Art. 32 in case where the validity z959 of an Act eo instanti abridging the petitioner's rights M b-;;Sh 0iJf under Art. 19(l)(f) was in dispute. The decision, the ~. ers o{>servations and the rule laid down must be read in Mysore state the context and in the circumstances of that case. TransportAuthority United Motors Transport Co. v. Bree Lakshmi Motors Transport Co., Ltd. ([1]), also was not case of judicial Kapur f. review but an appeal from 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 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 pro-pose 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 l~id down by this Court. As the petitroners' success would be partial, I leave the parties to bear their own costs in this Colfrt.

ORDERS OF COURT.

In Petitions Nos. 54 and 75 of 1959.

In accordance with the @pinion 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 (l)(a) read with s. 58(2) in the order of renewal made b,v it in favour of the petitioners on December 15, 1958. The ~etitioners will get one set. of costs from. the Mysore (I) A.I.R. (1945) Cal, 26o.

Governme!lt Road Transport Department which alone

Mahaboob 'sh,,iff has contested these petitions.

:V. · In Petition No. 76 of 1959. Transpo,tAuthority Mysore Slate-· - - I n accor a1~c~ WI 'th ... t op1n1on o · · th maJor1 · "t y, we _ allow the petit10n and quash that part of the order Kapur J. 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(l)(a) read with s. 58(2) in the order of renewal made by them in favour of the peti-tioners 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 l\Iysore Government Road Transport Department which alone has opposed-the petition.

BHAR,VAD MEPA DANA & ANOTHER

z959 v.

N ovembeT IP STATE OF BOl\IBAY

(S. K. DAS, A. K. SARKAR and l\I. HrnAYATULLAH, JJ.)

Criminal Trial-Murder-Unlawf"l assembly-Commo;• object "'-Acquittal of some, conviction of less than five-Legality of-Common intention-No proof who gave fatal blows-Effect of-Indian Penal Code, z86o (XLV of z/!60), ss. 34 and z49.

T\velve named persons. including ·the t\vo appellants, \vere charged with having forraed an unlawful as,embly with the common object of committing the murder of three persons. The Sessions Judge acquitted seven of the accused but convic,ed ' five· under s. 302 read with 149 and s. 302 read with 34 of the Penal Code. He sentenced the appellants to death and the other three to imprisonment for life. On appeal, the High Court acquitted one of the other three convicted persons but main-tained the conviction and sentences of the appellants and the two others. The High Court held that there were te"n to thirteen persons in the unlawful assembly though the identity of all the · persons except four had not been established, that all these . persons had the common object and the common intention of killing the victims and that the killing was done in prosecution of the common object of the unlawful assembly and in further-ance of the common intention of all. The appellants contended that they having been charged with sharing the common object and common intention with certain named. persons, it was not