Y. Mahaboob Sheriff and Others vs Mysore State Transport Authority and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Petitions Nos. 54, 75 and 76 of 1959

Decision Date: 06/11/1959

Coram: K.N. Wanchoo, Bhuvneshwar P. Sinha, Syed Jaffer Imam, J.L. Kapur, K.C. Das Gupta

In the matter of Y Mahabood Sheriff and others versus Mysore State Transport Authority and others, the Supreme Court of India delivered its judgment on 6 November 1959. The decision was authored by Justice K N Wanchoo, with a bench that also included Justices Bhuvneshwar P Sinha, Syed Jaffer Imam, J L Kapur, and K C Das Gupta. The case is reported in the 1960 volume of the All India Reporter at page 321 and in the 1960 Supreme Court Reports (Second Series) at page 146, and it has been cited in several subsequent decisions, including citations such as E 1962 SC1621, RF 1965 SC 40, R 1976 SC 853, and D 1982 SC 149. The legal issue concerned the Motor Vehicles Act of 1939, as amended by Act 100 of 1956, specifically section 58, which deals with the duty of a transport authority in granting and renewing stage-carriage permits.

The petitioners, who held stage-carriage permits that were due to expire on 31 March 1958, applied to the Regional Transport Authority in Bangalore seeking renewal of those permits. The Transport Department of the Mysore State Government opposed the renewal, asserting that the State intended to nationalise transport services and therefore should be granted fresh permits for the same routes. The Authority dismissed the applications of both the petitioners and the Department, but on appeal its orders were set aside and the matter was remanded for a fresh decision. During the pendency of the case a scheme under section 68C of Chapter IV A of the Act was published and approved by the State Government; this scheme was subsequently challenged by the petitioners and was struck down by the High Court. After the High Court’s intervention, the Authority issued renewal orders that extended the petitioners’ permits for a period of one year, from 1 April 1958 to 31 March 1959. The petitioners’ attempts to appeal those renewal orders proved futile, and they filed writ applications before the High Court under Articles 226 and 227 of the Constitution. Those applications were dismissed summarily and the High Court refused to grant certificates of appeal to the Supreme Court. Consequently, the petitioners approached this Court directly under Article 32 of the Constitution, seeking a determination of whether, on a proper construction of sub-section (1)(a) together with sub-section (2) of section 58, the period of renewal must be identical to the period provided for the original grant of a permit, and whether the Authority, in granting a renewal, is required to specify the duration of that renewal.

In this case, the Department argued that even if a renewal were required to match the period of the original permit, the Supreme Court could only set aside the order of the Regional Transport Authority by way of a writ and could not itself determine the renewal period, leaving the authority to decide the matter in accordance with the legal rule it had established. The Court, speaking through Chief Justice Sinha and Justices Imam, Wanchoo and Das Gupta, held that a proper construction of section 58 of the Motor Vehicles Act, 1939, shows that subsection (2) limits the duration of any renewal to a period not less than three years and not more than five years, the same range that applies to the original grant under subsection (1)(a). Accordingly, when the Authority exercises its discretionary power to grant a renewal, it must specify a renewal period that falls within that three-to-five-year range. The Court observed that the phrase “without renewal” appearing in subsection (1)(a) does not indicate a contrary intention. The decision in V. C. K. Bus Service Ltd. v. The Regional Transport Authority, Coimbatore, [1957] S.C.R. 663, was distinguished. Because the Authority intended to grant a renewal but, based on a mistaken understanding of the law, limited it to a single year, the Court found that it could sever the lawful part of the order from the unlawful part and set aside the latter. The judgments in 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, were referred to. The Court noted that it is not bound by the technical rules governing the issuance of writs by English courts, and therefore a mandamus-type direction could be issued requiring the Authority to state the renewal period in conformity with the rule articulated by the Court. The case of T. C. Basappa v. T. Nagappa, [1955] 1 S.C.R. 250, was relied upon. Per Justice Kapur, in circumstances such as the present one, the power of judicial review available under Article 32 of the Constitution allows the Court merely to annul an administrative order and not to replace it with its own decision, or to prescribe exactly what the tribunal must do. The Court may only set aside the order and direct the tribunal to reconsider the issue, applying the legal principle laid down by the Court. In exercising such jurisdiction, the Court acts in accordance with the broad principles that have governed the grant of writs in English law. Consequently, even assuming that a renewal must be for a period of not less than three years and not more than five years, the Court would only set aside the specific orders of the Regional Transport Authority in this case and require that Authority to revisit the decision in light of this judgment. Associated Provincial Picture Houses, Ltd.

The Court referred to several earlier decisions, namely Wednesbury Corporation (1948) 1 K.B. 223, The King v. Willesden Justices, Ex Parte Utley (1948) 1 K.B. 397, Veerappa Pillai v. Raman and Raman Ltd. [1952] S.C.R. 584 and Basappa v. Nagappa [1955] 1 S.C.R. 250. It also discussed Shewpujanrai Indrasamrai Ltd. v. The Collector of Customs [1959] S.C.R. 821, explaining and distinguishing that case. The decision in R. M. D. Chamarbaugwalla v. Union of India [1959] S.C.R. 930 was held to be inapplicable. Further authorities cited and distinguished were 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.

The matter before the Court was an original jurisdiction case involving Petitions Nos. 54, 75 and 76 of 1959, each filed under Article 32 of the Constitution of India for the enforcement of fundamental rights. Counsel for the petitioners included the Solicitor-General of India and another advocate, while the respondent in Petitions Nos. 54 and 75 was represented by the Additional Solicitor-General of India and two additional advocates. The judgment was delivered on 6 November 1959. The opinions of Chief Justice Sinha, Justice Imam, Justice Wanchoo and Justice Das Gupta were incorporated, with Justice Wanchoo delivering the principal judgment and Justice Kapur providing a separate opinion.

Justice Wanchoo noted that the two petitions were connected, both invoking Article 32 of the Constitution and raising essentially the same issues, and therefore would be decided together in this judgment. The essential facts necessary for resolution were as follows. The petitioners were operators of stage-carriage services in the area known as the Anekal pocket of the State of Mysore. They possessed permits for numerous routes, all of which were due to expire on 31 March 1958. In compliance with the statutory requirements, the petitioners submitted renewal applications at various times in January 1958, expecting that the applications would be decided before the expiry date.

On 1 February 1958, however, the Mysore Government Road Transport Department—hereinafter referred to as the Department—filed applications under Chapter IV of the Motor Vehicles Act, No. IV of 1939 (hereinafter the Act) seeking fresh permits for the same routes for which the petitioners’ renewal requests were pending. The Department subsequently sent a letter dated 25 February 1958 to the Regional Transport Authority, Bangalore (hereinafter the Authority). In that letter the Department informed the Authority that it had already submitted its applications for permits to operate transport vehicles in the Anekal pocket and that it intended to assume control of those routes effective 1 April 1958. The letter further explained that the Government of Mysore had been pursuing a policy of nationalisation of road-transport services in order to rationalise and coordinate the various forms of transport, noting that the Department was then operating 1,200 vehicles on 700 routes.

The Department’s correspondence also highlighted the benefits of granting the permits to it, arguing that such an allocation would rationalise the routes within the Anekal pocket, which at that time comprised twenty routes and fifty-eight operators. Consequently, the Department requested that the petitioners’ existing permits not be renewed and that fresh permits be issued to the Department instead.

The Transport Authority convened several meetings between March and July 1958, yet it failed to issue any orders concerning either the petitioners’ applications for renewal or the Department’s applications for new permits. Finally, on 11 August 1958, the Authority issued an order dismissing both the petitioners’ renewal requests and the Department’s applications for fresh permits. This order was puzzling because, if carried out strictly, it would have left the stage-carriage routes without any operating vehicles. Both the petitioners and the Department filed appeals against the 11 August order on 9 September 1958. While those appeals were pending, a scheme made under section 680 of Chapter IV-A of the Act was published, and the scheme received formal approval on 24 October 1958. Subsequently, on 30 October 1958, the Authority allowed the appeals of both parties and remanded the matter back to itself for fresh consideration. During the pendency of the remand, the petitioners applied to the High Court seeking to have the scheme set aside; the High Court quashed the scheme on 3 December 1958. After that decision, the Authority met again and issued renewal orders to the petitioners, granting them permits for a period of one year, namely from 1 April 1958 to 31 March 1959. The petitioners challenged that one-year renewal by filing an appeal, arguing that under section 58 of the Act they were entitled to a renewal of at least three years. Their appeal was dismissed on the ground that it was not maintainable. The petitioners also approached the High Court of Mysore under Articles 226 and 227 of the Constitution, but their petition was dismissed in limine and a certificate enabling them to appeal to this Court was denied on 30 March 1959. Following those setbacks, the present petitions were filed before this Court. Meanwhile, a new scheme was published on 22 January 1959; after completing the requisite formalities, the scheme was approved on 15 April 1959 and subsequently issued as an approved scheme on 23 April 1959. Although the subsequent events are not essential to the present petitions, they are noted for completeness. The Department applied for permits under section 68F of the Act on 24 April 1959. The petitioners contested the new scheme by filing a writ petition in the High Court of Mysore on 30 April 1959; that petition was dismissed on 1 June 1959. Thereafter the petitioners sought special leave to approach this Court and prayed for an ex parte stay, which was refused. A notice in respect of the stay application was issued and served on 18 June 1959. To prevent inconvenience to the public, temporary permits had been granted to the petitioners after the expiry of their renewal, covering the period up to 31 March 1959, for a further four months or until the Department obtained permits under section 68F, whichever occurred first. Accordingly, on 23 June 1959 the Authority met and granted permits to the Department under section 68F, while rejecting the petitioners’ renewal applications that had been filed in protest.

After the transport authority exercised the power conferred by section 68F of the Act, it denied the renewal applications submitted by the petitioners, noting that those applications had been filed under protest. On 24 June 1959 the transport services that were established under the new scheme were formally inaugurated by the Chief Minister. On that same day the petitioners filed another writ petition before the High Court, challenging the order dated 23 June 1959 that had granted permits to the Department and rejected the petitioners’ renewal requests. The High Court, on 14 July 1959, held that the granting of permits to the Department was legally invalid and that the authority’s refusal to renew the petitioners’ permits was erroneous. Nevertheless, the court declined to grant any relief to the petitioners, reasoning that any order in their favour would be of very short duration, and consequently dismissed the writ petition. The petitioners then sought a certificate that would permit them to appeal to this Court; that application remains pending. Following this, the Department applied for and obtained temporary permits on 16 July 1959. Subsequently, on 24 July 1959 the petitioners filed an additional writ petition challenging the Department’s temporary permits; that petition is also pending. In the interim the petitioners lodged two further writ petitions in this Court, both of which were admitted and will be considered separately. Finally, on 7 September 1959 this Court dismissed the special leave petition that had challenged the High Court’s order dismissing the writ petition against the approved scheme.

The petitioners maintain that they possess a fundamental right to engage in the business of transporting passengers, a right guaranteed by article 19(1)(g) of the Constitution, and that any restriction on that right must be imposed only in the manner laid down by the Act, which serves as a regulatory measure for motor vehicles. They argue that, under section 58 of the Act, they were entitled to a renewal of their permits for a period of three years, given that they had submitted renewal applications in January 1958 and that the authority had granted them only a one-year renewal, thereby contravening the statutory requirement and infringing upon their fundamental right. Accordingly, they pray that this Court intervene to protect their constitutional right to carry on transport services in accordance with the Act. While the wording of their prayer is somewhat imprecise, the essential relief they seek is an order directing the authority to renew their permits for a term not less than three years and not more than five years, as prescribed for stage-carriage permits. The respondents in these petitions are the Mysore State Transport Authority, the Regional Transport Authority, and the General Manager of the Mysore Government Road Transport Department. No representatives appeared on behalf of the first two respondents. The Department, acting as the third respondent, opposed the petitions and contended that a proper interpretation of section 58 permits the authority to set the renewal period at its discretion, which justified the one-year renewal, and that the only appropriate order would be to set aside the authority’s 15 December 1958 decision and direct it to decide the renewal applications according to the legal principles that this Court will articulate.

The respondent contended that, according to section 58 of the Act, the Authority possessed the power to determine any period for the renewal of a permit and that therefore the Authority had acted legally when it fixed the renewal period at one year. The respondent further argued that, even assuming that the Authority was required to set a renewal period of not less than three years and not more than five years, the only appropriate judicial direction would be to set aside the Authority’s order dated 15 December 1958 and to instruct the Authority to consider the renewal applications in accordance with the legal principles that this Court would establish. From these submissions it was evident that the central issue in the dispute was the proper interpretation of section 58 of the Act. Section 58 is located in Chapter IV of the Act, which governs the control of transport vehicles and includes the concept of “stage carriage,” the subject of the present proceedings. Consequently, it was necessary to examine the overall scheme of Chapter IV in order to give meaning to section 58. Chapter IV commences with section 42, which forbids the owner of a transport vehicle from operating it unless the operation complies with the conditions laid down in a permit that has been granted or countersigned by a Regional or State Transport Authority. Section 44 then provides for the constitution of both State and Regional Transport Authorities. Following that, sections 45 and 46 set out the requirements for making an application for a permit and the particulars that such an application must contain. Section 47 enumerates the factors that a Regional Transport Authority must consider when evaluating an application for a stage-carriage permit. Section 48 confers upon the Regional Transport Authority the authority to issue a stage-carriage permit in accordance with the original application or with any modifications that the Authority deems appropriate; it also stipulates that every stage-carriage permit must specify the route or routes for which it is valid and may impose conditions, subject to any rules, on the permit. The provisions of sections 49 through 56, which deal with other categories of transport vehicles, were not relevant to the matters before the Court. Section 57 outlines the procedural steps for applying for and granting permits. After that, section 58 addresses the duration and renewal of permits and reads as follows: “58(1)(a) – A stage carriage permit or a contract carriage permit other than a temporary permit issued under section 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 section 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 …” This passage makes clear that the duration of a permit is not merely a condition attached to the permit but is expressly governed by section 58. Sub-section (1)(a) becomes operative after the Authority has decided to grant a permit and it declares that a stage-carriage permit or a contract carriage permit, except where a temporary permit under section 62 applies, shall be valid for a period of at least three years and at most five years, as specified by the Authority in the permit. Thus, sub-section (1)(a) imposes a duty on the Authority after it has resolved to issue the permit.

The regulation provides that a renewal of a permit must be applied for (a) in the case of a stage-carriage permit or a public carrier’s permit, not less than sixty days before the date of expiry, and (b) in any other case, not less than thirty days before the date of expiry; it further provides that, other things being equal, an application for renewal shall be given preference over new applications for permits. The Court observed that, from the overall scheme of the Act, the length of a permit is not a condition that may be attached to a permit but is instead set out expressly in section 58. Sub-section (1)(a) of that section operates after the Authority has decided to grant a permit and provides that a stage-carriage permit or a contract carriage permit, other than a temporary permit issued under section 62, shall be effective “without renewal” for a period not less than three years and not more than five years, as the Authority may specify in the permit. Consequently, that sub-section imposes on the Authority a duty, once it has resolved to issue a stage-carriage permit, to state in the permit the period for which it will remain valid, and that period may not be shorter than three years nor exceed five years. The provision therefore applies to the original grant of a permit. Sub-section (2) then states that a permit may be renewed on an application that is made and disposed of as if it were an application for a permit. The petitioners argued that this language means that an application for renewal must be treated in every respect as an application for a new permit, so that the period prescribed in section 58(1)(a) for a permit should also govern the period of any renewal. The Department, however, contended that sub-section (2) merely prescribes the procedural steps for renewal and that the duration fixed in sub-section (1)(a) is not a procedural matter and therefore does not apply to renewals. Both sides conceded that the Act contains no other provision specifying the period for which a renewal may be granted, and the Department argued that this silence leaves the Authority free to fix any reasonable renewal period. The Department relied particularly on the words “without renewal” appearing in section 58(1) and on a decision of this Court in V. C. K. Bus Service Ltd. v. The Regional Transport Authority, Coimbatore. That earlier case, however, did not address the present issue; it dealt with a different question, namely whether a renewal constituted a fresh grant of a permit or merely a continuation of the original permit. In that case the Court held that a renewal was a continuation of the original permit and did not need to consider the specific question now before it, namely whether a renewal must also be for the same period as provided in section 58(1)(a).

In this case the Court examined whether a renewal of a permit must be for the same period that section 58(1)(a) prescribes for the original grant. The Court therefore turned to the argument founded on the expression “without renewal” that appears in section 58(1)(a). It was submitted that those words plainly show that the provision applies solely to the first issuance of a permit and cannot, under any circumstances, be applied to a renewal. The Court reiterated that section 58(1)(a) deals expressly with the grant of a permit and not with its renewal. The phrase “without renewal” in that sub-section, the Court explained, is intended only to indicate that, when the length of a permit is being calculated, any period added by renewal must be ignored. The wording was inserted to answer a possible contention that a renewal is merely a continuation of the original permit. The practical effect of the phrase is that, in measuring the total period of a permit, the renewal period must not be added to the original period, otherwise the aggregate could exceed the maximum of five years allowed by section 58(1)(a). For illustration, the Court said, a permit might be granted for five years and subsequently renewed for another five years. Because the permit remains the same and the renewal is simply endorsed on it, without the words “without renewal” a party could argue that the permit now has a ten-year span, which would violate section 58(1)(a). Consequently, the Court held that the words were inserted to defeat this contention and do not imply that the period specified in section 58(1)(a) does not apply to renewals. The Court further referred to section 10, which contains the same two words. Section 10 provides that a driving licence issued or renewed under the Act shall be effective “without renewal” for a period of three years only, measured either from the date of issue or, as the case may be, from the date on which the licence is renewed under section 11. Although the earlier part of section 10 deals with both issuance and renewal of licences, the phrase “without renewal” appears in the latter part, indicating that it was required to counter the argument that, since the licence remains the same after renewal, its total period could exceed three years. It was also submitted that section 10 expressly provides a three-year period for renewals, a provision that is absent in section 58(1)(a). The Court accepted that observation but explained that the omission of a specific renewal period in section 58(1)(a) is purposeful, a point that will be addressed in the following discussion.

The Court observed that section 58(2) of the Act expressly required that an application for renewal be presented and decided in the same manner as an application for a permit, whereas section 11, which dealt with licence renewal, contained no comparable wording and merely permitted any licensing authority, upon receipt of an application, to renew a licence from the date of its expiry. Because the language used in subsection (2) of section 58 differed from that in section 11, the Court held that the two provisions must produce different legal effects. The petitioners contended that the phrase in section 58(2) – that a renewal application shall be made and disposed of “as if it were an application for a permit” – meant that every consequence applicable to a permit should also apply to a renewal application. One such consequence, the Court noted, was that subsection (1)(a) of section 58 mandated the authority to specify a duration of not less than three years and not more than five years for a permit; the petitioners argued that the same minimum-and-maximum period ought to be indicated when the authority granted a renewal. The Court agreed with this contention, stating that no other provision in the Act fixed the length of a renewal, and it could hardly have been the legislature’s intention to leave the renewal period entirely to the discretion of the Regional Transport Authority, especially when the legislature had taken care to prescribe the duration for a permit itself. The petitioners further argued that the legislature might have intended the authority to determine a “reasonable” period, even one shorter than three years, which would consequently allow the authority to prescribe a period exceeding five years if deemed reasonable. The Court rejected this line of reasoning, explaining that the absence of any separate provision for renewal duration demonstrated that the legislature intended, by the wording of section 58(2), that a renewal should be for the same period prescribed in subsection (1)(a) for a fresh permit. While it was not disputed that section 58(2) made the considerations and the procedure for renewal identical to those for granting a permit, some submissions suggested that the legislature did not intend to go further and prescribe the identical duration for a renewal as for a permit. The Court found no justification for limiting the analysis to section 57 and ignoring subsection (1)(a) of section 58, concluding that the provisions governing the grant of a permit, including the duration requirement, must also apply to a renewal together with all

Section 58(2) provides that an application for renewal shall be presented and decided in the same manner as an application for a new permit. Consequently, every factor that governs the grant of a permit must also govern the grant of a renewal. One of the factors that applies to the grant of a permit is the provision in section 58(1)(a) which determines the permitted duration of a licence. In the Court’s view, the language of section 58(2) necessarily extends the operation of section 58(1)(a) to the duration of a renewal. It may be noted that several State legislatures had earlier amended section 58 so that the period of a permit could be fixed for less than three years. However, when the Central Legislature introduced amendments through the Amending Act No. 109 of 1956, those earlier State amendments were displaced, and the Central Legislature deliberately chose not to confer upon the States the power to reduce the permitted period to less than three years. If the intention had been to allow a permit – and consequently a renewal – for a period of less than three years, the Amending Act of 1956 would have contained an express provision to that effect, for the Central Legislature would have been aware of the State amendments that had previously been made. In the absence of any such provision, the Court is of the opinion that the duration prescribed in section 58(1)(a), namely a period not less than three years and not more than five years, must also apply to a renewal. Accordingly, by reading sections 58(1)(a) and 58(2) together, the Court holds that a renewal is bound by the same duration limits that apply to the original permit.

The matter then turned to the appropriate relief for the petitioners. The Department argued that the only remedy available to the Court was to set aside the order dated 15 December 1958 and remit the case to the Authority for a fresh consideration of the renewal issue. In contrast, the petitioners contended that the Court should strike down the unlawful condition that limited the renewal period to one year and should direct the Authority to specify a renewal period of not less than three years and not more than five years, in conformity with section 58(1)(a). This raised the question of whether a part of the Authority’s order could be severed. The principles governing the severability of an unconstitutional provision while preserving the remainder of a statute were articulated by the Court in R. M. D. Chamarbaugwalla v. The Union of India (1). The first principle requires an inquiry into whether the legislature would have enacted the valid portion had it been aware that the remaining part of the enactment was invalid. The Court later extended this principle to the context of orders in Shewpujanrai Indrasanrai Ltd. v. The Collector of Customs and Others (2), where a portion of the Collector’s order was struck down. Applying these principles, the Court must determine whether the Authority would have issued the renewal if it had known that it could not lawfully reduce the permitted period to less than three years.

In applying the principle articulated in Shewpujanrai Indrasanrai Ltd. v. The Collector of Customs and Others, the Court noted that a portion of the Collector’s order had previously been set aside. The Court therefore framed the issue as whether the Authority would have granted renewal if it had been aware that it could not shorten the permit period to less than three years. After reviewing the factual background already described, the Court found it obvious that the Authority would indeed have granted renewal under the circumstances existing in December 1958. The earlier permits in those cases had lapsed on 31 March 1958, and the petitioners had continued to operate their stage carriages up to the date of the order on 15 December 1958; such operation could not have been lawfully continued without a valid permit under section 42 of the Act. Consequently, the renewal of the permits was inevitable when the order was issued on 15 December 1958. Given this context, the Court held that it could sever the illegal portion of the order—namely, the clause limiting the renewal period—from the valid portion, which was the grant of renewal itself. The Court then considered what further direction was appropriate, observing that the remedy depended on the particular facts of each case and that the Indian courts were not bound by the procedural restrictions that historically governed the issuance of writs in English law. Referring to the decision in T. C. Basappa v. T. Nagappa and Another, the Court reiterated that articles 32 and 226 of the Constitution confer wide-ranging powers on the Supreme Court and High Courts to issue orders, writs, and directions—including habeas corpus, mandamus, quo warranto, prohibition and certiorari—as may be necessary to enforce fundamental rights or for other purposes. The Court emphasized that, because the Constitution expressly provides these powers, it need not be constrained by the early history or technicalities of English writ practice, nor by divergent opinions of English judges. Accordingly, the Court concluded that it could issue a mandamus-type direction compelling the Authority to comply with the law as interpreted by the Court, specifically to grant renewal in accordance with section 58(1)(a). The Court also acknowledged that when an authority’s discretion is involved, the usual approach is to set aside an order only if that discretion has not been exercised properly.

The Court explained that when an authority exercises discretion without proper basis, the Court may set aside the order and direct the authority to reconsider the matter. However, in the present case the authority’s discretion was not unfettered; it was limited by the provisions of section 58(1)(a) of the Motor Vehicles Act. That provision imposes on any authority that grants a renewal the duty to specify a renewal period that is not less than three years and not more than five years. Because the Regional Transport Authority in Bangalore chose to grant a renewal, it was required to fix the renewal term within the three-to-five-year range. The Court held that it was therefore within its power to order the authority to fulfil the duty prescribed by section 58(1)(a) read with section 58(2) when it grants a renewal. Accordingly, the Court allowed the petitions, set aside the part of the impugned order that extended the permits only up to 31 March 1959, and directed the Regional Transport Authority, Bangalore, to issue the renewal in accordance with the requirements of section 58(1)(a) together with section 58(2) as it should have done on 15 December 1958. The petitioners were awarded a single set of costs against the Mysore Government Road Transport Department, which was the sole respondent contesting the petitions. The case was identified as Petition No. 76 of 1959 and was presented before Justice Wanchoo.

The petition arose under Article 32 of the Constitution on behalf of several transport operators in the State of Mysore, and it raised the question of how section 58(2) of the Motor Vehicles Act, No. IV of 1939 should be interpreted. For the purpose of the decision, the Court summarised the relevant facts. The petitioners were carrying on stage-carriage services on certain inter-district routes that fell under the jurisdiction of the Regional Transport Authorities of Bangalore and Kolar, both of which were made parties to the petition because the permits were issued by the Bangalore authority and countersigned by the Kolar authority. The petitioners’ permits were due to expire on 31 December 1957 and were subsequently renewed only until 31 March 1958. Applications for a three-year renewal were then invited starting 1 April 1958, and the petitioners applied for renewal of their permits. At the same time, the Mysore Government Road Transport Department also sought permits for the same routes. The Department sent a letter to each of the two authorities, informing them that the Government of Mysore intended to nationalise road-transport services in the State, argued that it was better positioned to operate the services, and claimed that it could rationalise and coordinate the various forms of transport to provide a superior service to the public. In that letter the Department requested that the authorities should not renew the petitioners’ permits.

According to the record, the Department expressed its willingness to assume control of the services from 1 April 1958. Although meetings concerning the applications were held between May and December 1958, the Regional Transport Authorities did not issue any orders on the renewal applications during that period. In September 1958, the Department’s applications for the grant of permits were dismissed. The Department appealed that dismissal, and the appeal was allowed in March 1959, directing the Authorities to reconsider the applications. Subsequently, in January 1959, the Regional Transport Authority of Bangalore ordered that the renewal applications be re-notified, and the re-notification was carried out. Following this, the Department wrote again to the Bangalore Authority on 20 February 1959, requesting that the petitioners’ permits not be renewed. On 29 March 1959, the Bangalore Authority met and renewed permits for certain other routes for three years, while postponing the petitioners’ applications. At a further meeting on 30 April 1959, the Authority renewed the petitioners’ permits only until 30 September 1959. It is this order dated 30 April 1959 that the petitioners now challenge.

The petitioners contended that their constitutional right to carry on the business of passenger transport, guaranteed by Article 19(1)(g) of the Constitution, could be restricted only in the manner prescribed by the Motor Vehicles Act. They argued that Section 58 of the Act obliged the Authority to grant renewal for a period of at least three years when the Authority chose to renew, and that limiting the renewal to 30 September 1959 violated both the statutory provision and their fundamental right. Accordingly, they prayed that the Court intervene to protect their right and direct the Authority to renew the permits in accordance with the Act, which requires that a stage-carriage permit be renewed for a period not less than three years and not more than five years. The Department opposed the petition, asserting that a proper interpretation of Section 58 permitted a Regional Transport Authority to fix any renewal period it deemed appropriate, and therefore the Authority’s decision to renew the permits only until 30 September 1959 was lawful. The Department further maintained that, even if a minimum three-year term were required, the matter should be decided by directing the Authority to follow the correct legal procedure rather than by extending the renewal period beyond what was ordered.

In this case, the Court held that the sole remedy it could grant was to set aside the order dated 30 April 1959, which had renewed the permits only up to 30 September 1959, and to require the authorities to decide the renewal applications in accordance with the legal principles that the Court would establish. The Court observed that the present matter was substantially similar to Writ Petitions Nos. 54 and 75 of 1959, whose judgments had been delivered on the same day and which raised the identical two questions. The only distinction, the Court noted, was that no scheme prepared under Chapter IV-A existed for the routes that were the subject of the present petition. After examining the interpretation of section 58(2) read together with section 58(1)(a) in the earlier petitions, the Court considered the appropriate form of the order that should be made. Relying on the reasons articulated in those earlier petitions, the Court concluded that the present petition ought to be allowed. Consequently, the Court allowed the petition, annulled the specific part of the order that had stipulated renewal of the permits only until 30 September 1959, and directed the authorities to comply with the requirements of section 58(1)(a) read with section 58(2) when issuing a renewal order in favour of the petitioners on 30 April 1959. The Court also ordered that the petitioners would be awarded costs, excluding hearing costs because the hearing had been conducted jointly with Petition No. 75 of 1959, and that those costs should be paid by the Mysore Government Road Transport Department, which was the sole respondent opposing the petition. The Court listed the related matters as Petitions Nos. 54, 75 and 76 of 1959.

Justice Kapur, speaking for the Court, explained that under the circumstances he would not express an opinion on whether a Regional Transport Authority must, when renewing a permit, fix a period of not less than three years and not more than five years. Assuming that such a requirement existed, he examined what form of order the Court could and should issue in a case of this nature. The petitioners’ prayer was quoted as follows: “Wherefore your petitioners most humbly pray that the order of the 2nd respondent dated 15th December, 1958, be quashed as illegal, arbitrary, 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, up to 31st March, 1961.” The Court stated that an order issued without jurisdiction must be set aside, and an order that no reasonable body could have made is likewise deemed to exceed jurisdiction and must also be set aside. Justice Kapur further observed that the power of a superior court in such matters is not that of an appellate authority that can override the decision of the administrative tribunal—in this instance the Regional Transport Authority—as explained in the precedent Associated Provincial Picture Houses, Ltd. v. Wednesbury Corporation (1). Finally, the petitioners submitted that the Regional Transport Authority should be directed to grant renewal of the permits for a period of

The petitioners asked that the order of the Regional Transport Authority not only be set aside but also be replaced by a new directive that would require the Authority to renew the transport permits for a period of not less than three years and not more than five years. In effect, the petitioners sought a substitution of the original order with a fresh order that would compel the Authority to act in the specified manner, thereby amending the earlier decision rather than simply annulling it.

The Court observed that under English law the jurisdiction of certiorari does not extend to the power to amend an order. In the case of The King v. Willesden Justices, Exparte Utley, a person who had been lawfully convicted was erroneously fined at a rate that exceeded the statutory maximum. The Court held that the conviction was void on its face and that the order imposing the excessive fine had to be quashed, because a court exercising its extraordinary prerogative jurisdiction could not alter the order; it could only determine whether the conviction was legally sound. Subsequent English decisions adopted the same view, emphasizing that even when a writ of mandamus is available, the court may only command a tribunal to hear and determine the matter, not prescribe the manner in which the tribunal must reach its decision. This principle persists even where the original decision is wrong in fact as well as in law, and even where the circumstances suggest that there is only one correct way to perform the duty. The rule is explained in Halsbury’s Laws of England, 3rd Edition, Vol. 11, paragraph 187, and was reaffirmed in Veerappa Pillai v. Raman & Raman Ltd.

In the judgment of this Court, delivered by Chandrasekhara Iyer, J., the Court quoted the observation that the High Court had not limited itself to merely setting aside the proceedings but had also directed the Regional Transport Authority, Tanjore, to grant the petitioner permits for five buses that were jointly applied for by the petitioner and Balasubramania Pillai, and to allow the petitioner to provide substitute buses if the original ones were condemned. The Court held that such a direction went beyond the High Court’s jurisdiction and constituted an excess of power. The same principle was endorsed in Basappa v. Nagappa, where the Court referred to the earlier authority with approval. Relying on these precedents, the petitioners contended that the impugned order was partially severable and that the unlawful portion should be removed, leaving only the part that complied with law.

The Court observed that a direction had been issued requiring the tribunal to fix a renewal period of not less than three years and not more than five years. In the Court’s view this direction amounted merely to replacing the order that should have been made by the Regional Transport Authority itself. The Court noted that Article 32 confers upon it the authority to enforce fundamental rights, and that the right to approach the Court under Article 32 is itself a fundamental right. However, when the Court exercises its power of judicial review to enforce fundamental rights that are alleged to have been violated by an order of an administrative tribunal acting within its jurisdiction, the Court must adhere to established principles. One such principle, repeatedly affirmed in earlier authorities, holds that the functions available to judicial review are quite limited. The role of the courts in this field is to act as a check on the administrative branch of government, to guard against excesses of power and abusive exercise of authority that infringe private rights. Accordingly, judicial review is meant to control, not replace, administrative action, as explained in the cited commentary on American administrative law.

The Court further questioned whether the powers granted by Article 32 enable it to direct the administrative tribunal in the manner that the tribunal itself would have exercised its authority. The petitioners suggested that the tribunal would have ordered renewal of the permits irrespective of whether the renewal period fell within the three-to-five-year range. The Court found this assumption to be on a very weak foundation and noted that the prospect of nationalisation did not lend any substantial support to the argument. By issuing such a direction, the Court would be substituting itself for the Regional Transport Authority and acting as if it were the Authority, which exceeds the permissible scope of judicial review. The petitioners relied on the decision in Shewpujanrai Indrasanrai Ltd. v. The Collector of Customs. In that case the Collector, invoking a provision of the Sea Customs Act, ordered confiscation of smuggled gold, imposed a fine, required payment of customs duties, and conditioned the release of the gold on the production of a permit from the Reserve Bank of India within a specified period. It was admitted that the Collector lacked authority to impose the last two conditions, and the court was asked to consider whether the composite order should be partially upheld and partially set aside because part of it exceeded jurisdiction.

In the earlier judgment the Court held that the order should be set aside in its entirety because it exceeded the authority’s jurisdiction. Relying on the decision reported in [1959] S.C.R. 821 and on the Supreme Court’s own ruling in R. M. D. Chamarbaugwalla v. Union of India, the Court expressed the view that there was no difficulty in giving effect to the order after removing the two illegal conditions that had been attached. Justice S. K. Das, speaking for the Court, observed that “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.” The Court noted, however, that these remarks must be understood in the factual setting of the case and in light of the earlier decision in The King v. Willesden Justices, Ex parte Utley (2), which was cited but not applied because of the observations made by this Court in T. C. Basappa v. T. Nagappa & Anr. (4), a matter to be referred to presently. The principal basis for the order of severability, the Court explained, was that the appellant had not only sought a writ of certiorari but also asked for writs of mandamus and prohibition; those prayers were not superfluous or unnecessary but were required to remove the conditions that the Collector had placed on the release of the gold. The Court further held that where a decision of a lower court or tribunal is partly within and partly beyond its jurisdiction, a writ of prohibition may be issued against the portion that exceeds jurisdiction. In support of this principle, reference was made to Halsbury’s Laws of England, 3rd Edition, Vol. 11, page 116, paragraph 216, and to the case of Shree Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar & Ors. (4), where the doctrine of severability was applied. In the present case, two passages from Basappa v. Nagappa (3) at page 257 were quoted with approval. After reviewing the cited authorities, Justice S. K. Das concluded on page 844 that “there is no insuperable difficulty in the present case in prohibiting respondents 1 to 3 from enforcing the two invalid conditions” and listed the relevant citations: (1) [1957] S.C.R. 930, (3) [1955] 1 S.C.R. 250, (2) (1948) 1 K.B. 397, (5) [1959] S.C.R. 821, and (4) [1959] S.C.R. 279. Those conditions, imposed by the Collector of Customs for the release of the gold upon payment of a fine in lieu of confiscation, included a time limit of four months, which the Court held must run from the date of the present order. The Court further observed that, although it considered its own powers to be broader than those of the English courts, the fundamental principles that govern the issuance of writs in English law remain relevant when this Court exercises its jurisdiction to grant such writs.

In this passage the Court observed that the earlier case could not be treated as authority for the proposition that, in matters of judicial review, this Court would apply principles different from those applied by the courts in England. The Court further explained that the principal holding in that earlier case rested on the fact that a writ of prohibition had been sought, and that, when granting such a writ, the Court was entitled to set aside the portion of the order that exceeded the statutory jurisdiction. Moreover, the Court pointed out that, in the same case, even after the illegal conditions were severed, the Collector’s order continued to exist as a valid and enforceable decree; it was not reduced to a fragmented or incomplete order merely because two conditions had been removed. The Court then asked whether, in the present matter, the impugned order could nevertheless be regarded as a single, coherent and intelligible order after the condition concerning the period was deleted, and whether that situation would be covered by the rule articulated in Chamarbaughwalla’s case. The sixth condition stated on page 951 of that judgment provided that, if after striking out the invalid portion the remaining part could not be enforced without further alteration or modification, the entire order should be set aside. The Court also inquired whether, analogously to the conclusion reached in Shewpujanrai’s case, the order could be enforced without the period condition and without the necessity of drafting a substitute order to replace the one originally issued by the Regional Transport Authority. The Court expressed the view that such an outcome could not be sustained.

Subsequently, the Court turned to the considerations arising from the case of T. C. Basappa v. T. Nagappa. That matter involved an appeal against a decision of the Mysore High Court reported in [1959] S.C.R. 821, with the additional citations [1957] S.C.R. 930 and [1955] 1 S.C.R. 250, and concerned a writ petition filed under Article 226 in the context of an election dispute. In that dispute the Election Tribunal had found certain issues in favour of the petitioner, declared the election void, and the respondent subsequently filed an application under Article 226 seeking a writ of certiorari, which was ultimately granted. The question that arose before this Court was whether the Tribunal whose order had been set aside had acted without jurisdiction or whether there was any apparent error on the record, and, accordingly, two specific issues required determination: first, the scope of the High Court’s power exercised under Article 226 to issue a writ of certiorari to annul the adjudication of an Election Tribunal; and second, whether the grounds relied upon by the Tribunal satisfied the criteria for such a writ. After reviewing the principles governing the issuance of certiorari in the superior courts of England and tracing the historical development of that power, Justice Mukherjea, speaking as he then was, observed that the Constitution of India had conferred upon the High Courts a broad and expansive authority to issue directions, orders, or writs not only for the enforcement of fundamental rights but also for any other purpose deemed appropriate. Referring to page 256 of the report, the learned judge concluded by stating that, in view of the constitutional provisions, the High Courts possessed the requisite jurisdiction to entertain such applications. The judgment therefore underscored that the High Courts could entertain writ applications even where the underlying dispute did not directly involve a breach of fundamental rights. This principle was highlighted to show that the same expansive view of jurisdiction applied to the present case concerning the transport authority.

In observing the express provisions of the Constitution, the Court explained that it was unnecessary to revisit the early history or the procedural technicalities of certiorari writs as they existed in English law, nor was it required to feel constrained by any differences or changes of opinion expressed in particular English cases. The Court stated that an order or a writ in the nature of certiorari could be issued in all appropriate cases and in an appropriate manner, provided that the broad and fundamental principles that govern the exercise of jurisdiction for granting such writs in English law were respected. The judgment clarified that, in the earlier case, the Court had not held that the English principles governing jurisdiction were to be ignored. On the contrary, the learned Judge quoted several English decisions, including Rex v. Electricity Commissioners and King v. Nat Bell Liquors Limited. At page 258, a passage from the judgment of Morris, L. J., in Rex v. Northumberland Compensation Appellate Tribunal was quoted with approval, and a passage from the judgment of Chandrasekhara Iyer, J., in Veerappa Pillai v. Raman & Raman Ltd. at page 594 was also cited, stating that however extensive a jurisdiction may be, it is not so wide as to allow the High Court to become a Court of Appeal and to examine for itself the correctness of the impugned decision and to decide the proper view or order to be made. After referring to these passages, Mukherjea, J., (as he then was) observed that the quoted material sufficiently indicated the general principles that govern the exercise of jurisdiction in granting writs of certiorari under article 226 of the Constitution. The Court therefore concluded that in Basappa’s case it had not suggested that a superior court should act differently from English courts; rather, it had affirmed that, based on the facts and circumstances before the High Court, a writ of certiorari was rightly issued. The Court emphasized that issuing a certiorari writ did not permit a superior court to substitute the tribunal’s order or to dictate what order should be made. In essence, judicial review was limited to checking administrative tribunals, not to supplanting their actions. Accordingly, the Court’s power extended only to quashing an administrative decision, not to replacing it with a new order or directing specific actions. The learned Solicitor General referred to Kochunni v. State of Madras, noting observations on the Court’s power to shape its writs or orders to meet the exigencies of a case; however, that reference concerned a matter that was not a judicial review of administrative action.

The Court observed that the authorities cited – namely (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 and (6) A.I.R. (1959) S.C. 725 – related to the exercise of the powers granted under Article 32 in a matter where the validity of a statutory provision allegedly abridging the petitioner’s rights under Article 19(1)(f) was under dispute. The Court stressed that the decision, the observations and the rule laid down in those authorities must be read in the context and the circumstances of the case in which they were made. The Court further noted that United Motors Transport Co. v. Sree Lakshmi Motors Transport Co., Ltd. (1) was not a case of judicial review but an appeal from a decree, and therefore it did not affect the question presently before the Court. The petitioners had applied to the High Court under Articles 226 and 227 of the Constitution against an order issued by the Regional Transport Authority; that application was dismissed and the High Court also refused a certificate for appeal. The Court declined to discuss the legal effect of the High Court’s order, which had become final because no appeal was filed, as there had been no opportunity to debate the matter before the Bar. In the Court’s opinion, it could not issue an order commanding the Regional Transport Authority what order to pass or what period to set in place of the authority’s own order; the Court’s power was limited to quashing the impugned order and leaving the authority free to reconsider the matter and exercise its discretion in accordance with the law as laid down by the Court. Because the petitioners’ success would be only partial, the Court ordered that each party bear its own costs.

The Court thereafter issued its orders. In Petitions Nos. 54 and 75 of 1959, and in accordance with the majority view, the Court allowed the petitions and quashed the portion of the order that specified renewal of the permits up to 31 March 1959. The Court directed the Regional Transport Authority, Bangalore, to comply with the legal requirements set out in section 58(1)(a) read with section 58(2) when renewing the permits in favour of the petitioners, as was done on 15 December 1958. The petitioners were awarded one set of costs from the Mysore Government Road Transport Department, which alone had contested the petitions. In Petition No. 76 of 1959, again following the majority opinion, the Court allowed the petition and quashed the part of the order that specified renewal of the permits up to 30 September 1959. The Court directed the authorities to comply with the requirements of section 58(1)(a) read with section 58(2) in the renewal order made in favour of the petitioners on 30 April 1959.

The order dated 30 April 1959 directed that the petitioners be awarded costs in the present proceedings. However, the award expressly excluded the portion of costs that pertained to the conduct of the hearing. The reason for this exclusion was that the hearing had been held jointly with Petition No. 75 of 1959, and therefore the hearing expenses were considered common to both matters. Consequently, the court held that the petitioners could not recover those shared hearing costs as a separate component of their cost award. The responsibility for paying the awarded costs was placed upon the Mysore Government Road Transport Department. This department was identified as the sole opponent of the petition, and thus the only party required to satisfy the cost order against the petitioners. In summary, the petitioners were to receive a cost award from the Mysore Government Road Transport Department, but the award did not include any amount for hearing costs because the hearing was common with the earlier petition, and the Department alone had opposed the relief sought.