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TMI Blog1959 (11) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... hicles 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 had 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. 4. The Authority met a number of times ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 7. 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 and Regional Transport Authorities. Then comes Sections 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 whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 renewal. Reliance in this connection was placed in particular on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of holders of driving licences for holding or obtaining driving licences, be effective 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." 10. 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 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 authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 12. 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 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 also for less than three years, we would have expected some provision to that effect in the Amending Act of 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 14. 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 [1955] 1 S.C.R. 230, this Court observed as follows at 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Kolar (hereinafter called the Authorities). The routes 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment 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. 19. This case is similar to Writ Petitions Nos. 54 and 75 of 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 is 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act in a particular manner, that is, to renew the permits for a period on 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, Ex parte Utley (1948) 1 K.B. 397. 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 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. 25. 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 dictati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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). 29. 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 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 nationalisation 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. 30. Reliance was placed by the petitioners on Shewpujanrai Indrasanrai Ltd. v. The Collector of Customs 1958CriLJ1355 . In that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso to Shree Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar & Ors. [1959]1SCR279 where the principle of severability was applied. In Shewpujanrai's case 1958CriLJ1355 two passages from Basappa v. Nagappa [1955]1SCR250 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 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." 32. It will be seen therefore that in Shewpujanrai's case 1958CriLJ1355 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 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 (here into ' ') are mine). 34. 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 kept in view. As a matter of fact the learned Judge then gave quotations from various English decisions e.g. Rex v. Electricity Commissioners (1924) 1 K.B. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , also was not a case of judicial review but an appeal from a decree and does not affect the question now before us. 36. 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. 37. 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. 38. In accorda ..... X X X X Extracts X X X X X X X X Extracts X X X X
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