ons Nos 54 75 and 76 of 1959
Petitions under Article 32 of the Constitution of India for enforcement of Fundamental Rights
C K Daphtary Solicitor General of India and B R L Iyengar for the petitioners
H N Sanyal Additional Solicitor General of India R Gopalakrishnan and P M Sen for the respondent No 3 in Petitions Nos 54 and 75 of 1959
November 6
The judgments of Sinha CJ Imam Wanchoo and Das Gupta JJ was delivered by Wanchoo J Kapur J delivered a separate judgment
Petitions Nos 54 and 75 of 1959
WANCHOO J
These are two connected petitions under Act
32 of the Constitution and raise similar points and will be disposed of by this judgment
The brief facts necessary for their disposal are these The petitioners are transport operators in what is known as the Anekal pocket of the State of Mysore
149 They held stage carriage permits for various routes which were expiring on March 31 1958
They therefore applied for the renewal of the permits on various dates in January 1958 as required under the law Normally their applications should have been disposed of before March 31 1958
However on February 1 the Mysore Government Road Transport Department hereinafter called the Department made applications under Chapter IV of the  No IV of 1939 hereinafter called the Act for grant of permits on the same routes for which renewal applications were pending
The Department followed this up by a letter dated February 25 1958 to the Regional Transport Authority Bangalore hereinafter called the Authority
In this letter the Authority was informed that the Department had already submitted applications for grant of permits for operation of transport vehicles in the Anekal pocket and it was proposed to take over these routes with effect from April 1 1958
It was also pointed out that the Government of Mysore bad been pursuing the policy of nationalisation of road transport services with a view to rationalise and co ordinate the various forms of transport and that the Department was operating 1200 vehicles on 700 routes
The letter went on to point out the advantages of granting permits to the Department resulting in rationalisation of the routes in the Anekal pocket in which at that time there were 20 routes and 58 operators
It was therefore requested that the permits of the petitioners should not be renewed and fresh permits granted to the Department
The Authority met a number of times from March to July 1958 but passed no orders on the applications of the petitioners nor on those of the Department
Eventually on August 11 1958 the Authority dismissed the petitioners  applications for renewal as well as the Department s for grant of fresh permits
We must say that this appears to be a curious order for the result of this order strictly would be that no stage carriages would be able to ply on these routes
However both parties  appealed on September 9 1958 against the orders of August 11
In the meantime a 150 scheme under section 680 of Chapter IV A of the Act was published
This scheme was approved on October 24 1958 while the appeals were pending
On October 30 the appeals of both parties were allowed and the matter was remanded to the Authority for fresh disposal
In the meantime however the petitioners had applied to the High Court for quashing the scheme and it was quashed by the High Court on December 3 1958
Thereafter the Authority met again and passed orders renewing the permits of the petitioners for a period of one year from April 1 1958 to March 31 1959
The petitioners went up in appeal against the orders granting them renewal only for one year on the ground that they were entitled to renewal for three years at least under section 58 of the Act
Their appeals were dismissed as not maintainable
They also applied to the High Court of Mysore under Articles 226 and 227 of the Constitution but their petition was dismissed in limine and a certificate to enable them to appeal to this Court was refused on March 30 1959
Thereafter the present petitions were filed in this Court
In the meantime however a fresh scheme was published on January 22 1959 and after necessary formalities was approved on April 15 1959 and finally published as an approved scheme on April 23 1959
What happened thereafter is not really material for purposes of these petitions but we may as well mention it to complete the narrative
The Department applied for permits under section 68F of the Act on April 24 1959
On April 30 1959 the petitioners challenged the new scheme before the High Court of Mysore by a writ petition
That petition was however dismissed on June 1 1959
Thereafter they came to this Court for special leave and prayed for ex parte stay which was refused
Notice was however issued on the stay application which was served in June 181959
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 s68F whichever was earlier
Consequently on June 23 151 1959 the Authority met and granted permits to the Department under section 68F and rejected the renewal applications of the petitioners which were said to have been filed under protest
On June 24 1959 the transport services in pursuance of the scheme were inaugurated by the Chief Minister
On the same day the petitioners applied to the High Court by a writ petition challenging the order of June 23 1959
On July 14 1959 the High Court held that the grant of permits to the Department was invalid and the rejection of the renewal applications was incorrect
But it did not pass any order in favour of the Petitioners on the ground that the relief granted would be short lived and dismissed the writ petition
The petitioners then applied for a certificate to enable them to appeal to this Court and that application is still pending
Thereafter the Department applied for temporary permits which were granted on July 16 Another writ petition was filed on July 24 1959 by the petitioners challenging the grant of temporary permits to the Department which is still pending
In the meantime the petitioners filed two other writ petitions in this Court which were admitted and will be dealt with separately
Finally the special leave petition against the judgment of the High Court dismissing the writ petition against the approved scheme was dismissed by this Court on September 7 1959
The main contention of the petitioners in these cases is that they are entitled to carry on the business of transport of passengers as a fundamental right guaranteed to them under article 191g of the Constitution and that this right can only be restricted in the manner provided by the Act which is a regulatory measure dealing with motor vehicles
They contend that they were entitled under section 58 of the Act to renewal of their permits for three years in case the Authority decided to  renew them on the applications which they had made in January 1958 and in so far as the Authority gave them renewal only for one year it was acting in contravention of the Act and was thus committing a breach of their fundamental right
They 152 therefore pray that this Court should come to their aid and protect their fundamental right to carry on the business of transport in accordance with the Act
The prayer which they actually made is somewhat inartistic but in effect they want that the authority be directed to renew their permits in accordance with the Act which requires that the renewal must be for a period of not less than three years and not more than than five years so far as stage carriage permits are concerned
The respondents to these petitions are the Mysore State Transport Authority the Regional Transport Authority and the General Manager Mysore Government Road Transport Department
No appearance has been put in on behalf of the first two
The petitions are being opposed by the third respondent namely the Department and the main contention on its behalf is that on a correct interpretation of section 58 of the Act it is open to the Authority to renew a permit for any period it chooses to fix and therefore it was acting in accordance with the law when it fixed the period at one year
It is further contended that even if the Authority must fix a period of not less than three years and not more than five years the only order that this Court should pass in these cases is to quash the order of the Authority dated December 15 1958 and direct it to decide the renewal applications in accordance with the law to be laid down by this Court
It will be clear from the above contentions of the parties that the first and foremost question in this case is the interpretation of section 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 section 58 thereof
That Chapter begins with section 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 153 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 which a Regional Transport Authority shall have regard in considering the application for a stage carriage permit
Section 48 gives power to the Regional Transport Authority to grant a stage carriage permit in accordance with the application or with such modifications as it deems fit
It also provides that every stage carriage permit shall be expressed to be valid for specified route or routes and sets out the conditions which may subject to any rules be attached to a permit
We are not concerned in these cases with sections 49 to 56 which deal with other kinds of transport vehicles
Section 57 provides the procedure in applying for and granting of permits
Then comes section 58 which deals with duration and renewal of permits and is in these terms  581a 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 renewal of a permit shall be made a in the case of a stage carriage permit or public carrier s permit not less than sixty days before the date of the expiry and b in any other case not less than thirty days before the date of its expiry Providing further that other conditions being equal an application for renewal shall be given preference over new applications for permits
20 154 3     I will be seen from this scheme of the Act that the duration of a permit is not one of the conditions attached to it but is specifically provided for in section 58
Sub section
1a thereof comes into play after the Authority has decided to grant a permit and lays down that a stage carriage permit or a contract carriage permit other than a temporary permit issued under section 62 shall be effective without renewal for such period not less than three years and not more than five years as the Authority may specify in the permit
This sub section therefore casts a duty on the Authority after it has decided to grant a stage carriage permit to specify therein the period for which it shall be valid and this period can in no case be less than three years and more than five years
This sub section applies to grant of a permit
Then comes sub section
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 section 581 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 section
2 only refers to the procedure for granting permits and the duration provided for sub section
1a 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 words  without renewal  appearing in a581 and also on a decision of this Court in V C K Bus Service Ltd vs The Regional Transport Authority Coimbatore 1
That case however did not deal with the question before us but with a different question altogether
The question there was whether 1 155 a renewal amounted to a grant of a fresh permit or was merely a continuation of the original permit
This Court held that the renewal was a continuation of the original permit
It had no occasion then to deal with the question specifically before us namely whether a renewal should also be for the same period as provided in section 58 1a
Let us therefore turn to the contention based on the words  without renewal  appearing in section 58 1a
It is urged that these words clearly indicate that section 581a applies only to the first grant of the permit and cannot in any circumstances apply to a renewal of the permit
As we have already said section 581a specifically deals only with the grant of a permit and not with a renewal
The words  without renewal  appearing in that sub section only signify that in counting the period of a permit renewals should be disregarded
It was necessary to put in these words to meet a possible contention arising out of the fact that a renewal only amounts to a continuation of the original permit
The effect of these words is that in considering the period of a permit the period of the renewal should not be added to the period of the permit thus making the total period which may be more than five years invalid under section 581a
For example a permit may be granted for five years
It is then renewed for another five years
Now the permit is the same and the renewal is only endorsed upon it
If the words  without renewal  were not in the sub section it might be contended that the permit being the same its period was ten years and therefore it contravened section 58 1a
These words therefore were necessary to meet this contention and are no indication that the period mentioned in section 581a does not apply to renewals
We may in this connection refer to the language of section 10 where also the same two words occur ie   A driving licence issued or renewed under this Act shall subject to the provisions contained in this Act as to the cancellation of driving licences and disqualification of holders of driving licences for holding or obtaining driving licences be effective 156 without renewal for a period of three years only from the date of the issue of the licence or as the case may be from the date with effect from which the licence is renewed under section 11
 Thus though the earlier part of section 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 section 10 specifically provides for renewals also for three years and that is not provided in section 581a
That is undoubtedly so
But the reason why section 581a does not provide specifically for renewals is to be found in the fact that there is section 582 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 authority may on application made to it renew a licence issued under the provisions of this Act from the date of its expiry
Different language used in sub section
2 of section 58 therefore must have a different effect and the contention on behalf of the petitioners is that section 582 when it says that an application for renewal shall be made and disposed of as if it were an application for a permit must mean that all incidents which apply to a permit shall also apply to a renewal application
One of the incidents which applies to a permit is that the Authority is enjoined by sub section
1a of section 58 to indicate a period of not less than three years and not more than five years in the permit so far as its duration is concerned
The same must apply to a renewal and the Authority must indicate when granting a renewal a period of not less than three years and not more than five years as the duration
We are of opinion that the contention of the petitioners as to the effect of section 582 is correct
There is no other provision in the Act which fixes the duration of a renewal
It could hardly be the intention of the 157 legislature that the duration of the renewal should be left entirely to the discretion of the Regional Transport Authority particularly when the legislature took care to fix the duration for the permit itself It is urged that the legislature intended that the duration of the renewal should be left to the Authority which would prescribe a reasonable period which may even be less than three years
If that was so it would be equally open to the Authority to specify a period for more than five years which it may consider reasonable
We do not think that this was the intention of the legislature and the reason why no other provision was made for the duration of a renewal was that the legislature intended by these words in section 582 that the renewal would be for such period as was prescribed in section 1a for a fresh permit
It is not disputed that the effect of section 582 is that the considerations for renewal would be the same as for the grant of the permit and the procedure would also be the same
But it is said that the legislature did not intend to go further and prescribe the same duration for a renewal as for a permit
We are of opinion that there is no reason why we should stop short at section 57 and should not take into account section 581a as applying to a renewal along with all other considerations that apply to the grant of a permit
section 582 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 section 581a relating to the duration of a permit and that must in our opinion on the words of section 582 apply to the duration of a renewal
It may also be mentioned that there were amendments of section 58 by various State legislatures by which the duration of a permit could be fixed at less than three years
When however the Central legislature made amendments in the Act by the Amending Act No 109 of 1956 the amendments made by the State legislatures earlier fell through and the Central 158 legislature did not think it fit to give power to the State legislatures to reduce the period below three years in the case of a permit
If it were intended that a permit may be granted for less than three years and a renewal may be made also for less than three years we would have expected some provision to that effect in the Amending Act of 1956 for the Central legislature could not be unware of the amendments made by the various State legislatures
In the circumstances we are of opinion that the duration of a permit under section 581a being not less than three years and more than five years the same applies to a renewal
We therefore hold that reading sections 581a and 582 together a renewal must also be governed by the same provision which governs the duration of a permit
This brings us to the question of relief to be granted to the petitioners
It is contended on behalf of the Department that all that this Court can do is to quash the order of December 15 1958 and send the case back to the Authority for consideration of the question of renewal afresh
On the other hand the petitioners contend that this Court should quash the illegal condition limiting the duration of the renewal to one year and direct the Authority to specify a period of not less than three years and not more than five years in conformity with section 581a in the order of renewal
This raises the question of severability of a part of the order passed by the Authority
The principles on which any unconstitutional provision can be severed and struck down leaving other parts of a statute untouched were laid down by this Court in R M D Chamarbaugwalla vs The Union of India 1 and the first principle is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid
This principle relating to statutes was extended by this Court to orders in Shewpujanrai Indrasanrai Ltd vs The Collector of Customs and Others 2 where a part of the order of the Collector of Customs was quashed
The question therefore resolves into this Would the Authority have ordered renewal if it knew that it could not reduce 1  2  159 the period of a permit to below three years  Looking at the facts of these cases which we have set out earlier it is to our mind obvious that the Authority would have granted renewal in the circumstances of these cases when it did so in December 1958
The previous permits in these cases had expired on March 31 1958 and the petitioners had been plying their stage carriages right up to the time when the order was passed on December 15 1958 they could not do so without a permit in view of section 42 of the Act
Therefore renewal in these cases was certain when the order was passed on December 15 1958
In the circumstances it is open to us to sever the illegal part of the order from the part which is legal namely the grant of the renewal
The next question is what order should be passed in the circumstances
This depends on the exigencies of each case for this Court is not confined by the technical rules relating to issue of writs by the English Courts
In T C Basappa vs T Nagappa and Another this Court observed as follows at p 256  The language used in articles 32 and 226 of our Constitution is very wide and the powers of the Supreme Court as well as of all the High Courts in India extend to issuing of orders writs or directions including writs in the nature of habeas corpus mandamus quo warranto prohibition and certiorari as may be considered necessary for enforcement of the fundamental rights and in the case of the High Courts for other purposes as well
In view of the express provision in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges
We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law 1   160 It is therefore upon to us to issue a direction in the nature of mandamus requiring the Authority to follow the law as laid down by this Court in respect to the order of renewal granted by it in accordance with section 58 1 a
It is true that where it is a case of discretion of an authority this Court will only quash the order and ask the authority to reconsider the matter if the discretion has not been properly exercised
But in this case the discretion is not absolute it is circumscribed by the provision of section 581a which lays down a duty on the Authority which grants a renewal to specify a period which is not less than three years and not more than five years
The duty being laid on the Authority which has in this case decided to grant a renewal to specify a period not less than three and not more than five years as the duration of the renewal it is in our opinion open to this Court to direct the Authority to carry out the duty laid on it by section 58 1 a read with section 58 2 when it has granted the renewal
We therefore allow the petitions and quash that part of the order complained against which specified the renewal of the permits upto March 31 1959 and direct the Regional Transport Authority Bangalore to comply with the requirements of the law as laid down in section 58 1 a read with section 58 2 in the order of renewal made by it in favour of the petitioners on December 15 1958
The petitioners will get one set of costs from the Mysore Government Road Transport Department which alone has contested these petitions
Petition No 76 of 1959
WANCHOO J This is a petition under article 32 of the Constitution by certain transport operators in the State of Mysore and raises a question as to the interpretation of section 582 of the  No IV of 1939 hereinafter called the Act The brief facts which are necessary for our purpose are these The petitioners were operating on the basis of stage carriage permits on certain routes which are under the control of the Regional Transport Authorities Bangalore and Kolar hereinafter called the Authorities
The routes 161 being inter district routes the permits are
issued by the Regional Transport Authority Bangalore and are countersigned by the Regional Transport Authority Kolar
That is why both have been made parties to the petition
The permits of the petitioners were expiring on December 31 1957 and were renewed upto March 31 1958
Applications for renewal were invited thereafter for three years from April 1 1958
Consequently the petitioner made applications for renewal of their permits
It appears that the Mysore Government Road Transport Department hereinafter called the Department also applied for permits for the same routes
The Department also wrote a letter each to the two Authorities in which it pointed out that the Government of Mysore was pursuing a policy of nationalisation of road transport services in the State and that it would be in a better position to run the services on these routes and would be able to rationalise and co ordinate the various forms of transport and offer better service to the public
It therefore requested that the permits of the petitioners should not be renewed and that the Department was prepared to take over the services from April 1 1958
Though meetings were held from May to December 1958 the Authorities did not pass any orders on the applications for renewal
It appears however that the applications of the Department for grant of permits were dismissed in September 1958
The Department went up in appeal against this order which was allowed in March 1959 and the Authorities were directed to reconsider the applications 
In the meantime the Regional Transport Authority Bangalore ordered in January 1959 that the applications for renewal should be re notified and this was done
Upon this the Department wrote again to the Bangalore Authority on February 20 1959 not to renew the permits of the petitioners
Eventually the Regional Transport Authority Bangalore met on March 29 1959 and renewed permits relating to certain other routes for three years while the applications of the present petitioners were postponed
There was another meeting on April 30 1959 when the permits of the petitioners were renewed 162 till September 30 1959
It is this order which is being challenged by the present petition
The petitioners case is that they are entitled to carry on the business of transport of passengers as a fundamental right guaranteed to them under article 191g of the Constitution and that this right can only be restricted in the manner provided by the Act which is a regulatory measure dealing with motor vehicles
They contend that they were entitled under section 58 of the Act to renewal of their permits for at least three years in case the Authorities decided to grant renewal on the applications which they had made in January 1958 and in so far as the Authorities gave them renewal only upto September 30 1958 they were acting in contravention of the Act and were thus committing a breach of their fundamental right
They therefore pray that this Court should come to their aid and protect their fundamental right to carry on the business of transport in accordance with the Act
The prayer which they actually made is somewhat inartistic but in effect they want that the Authorities be directed to renew their permits in accordance with the Act which requires that the renewal must be for a period of not less than three years and not more than five years so far as stage carriage permits are concerned
The petition has been opposed by the Department and the main contention on its behalf is that on a correct interpretation of section 58 of the Act it is open to a Regional Transport Authority to renew a permit for any period it chooses to fix and therefore the Authorities in this case were acting in accordance with the law when they renewed the permits of the petitioners upto September 30 1959
It is further contended that even if the Regional Transport Authority must fix a period of not less than three years and not more than five years the only order that this Court should pass is to quash the order dated April 30 1959 renewing the permits upto September 30 1959 and direct the Authorities to decide the renewal applications in accordance with the law to be laid down by this Court
163 This case is similar to Writ Petitions Nos 54 and 75 of 1959 in which judgment has been just delivered today and raises the same two questions which have been raised there
The only difference is that there no scheme prepared under Chapter IV A in connection with the routes with which we are concerned here
We have considered the interpretation of section 582 read with section 581a in Writ Petitions Nos 75 and 54 of 1959 and the form of the order to be passed
For reasons given in those petitions we are of opinion that this petition should be allowed
We therefore allow the petition and quash that part of the order complained against which specified the renewal of the permits upto September 30 1959 and direct the Authorities to comply with the requirements of the law as laid down in section 581a read with section 582 in the order of renewal made by them in favour of the petitioners on April 30 1959
The petitioners will get their costs except hearing costs as the hearing was common with Petition No 75 of 1959 from the Mysore Government Road Transport Department which alone has opposed the petition
Petitions Nos 54 75 and 76 of 1959
KAPUR J
In the circumstances of this case I do not propose to give any opinion on the question whether in renewing a permit the Regional Transport Authority had to do so for a period of not less than three and not more than five years
Assuming that it should have been so what is the form of order that this Court could and should make in a case like the present
The petitioners  prayer was as follows   Wherefore your petitioners most humbly pray that the order of the 2nd respondent dated 15th December 1958 and be quashed as illegal arbitary unreasonable unconstitutional and void and the 2nd respondent be directed to grant renewal of your petitioners  permit strictly according to law as has been done in the case of all other operators in that region upto 31st March 1961
 If the Impugned order is without jurisdiction then it is liable to be quashed
If it is such that no reasonable 164 body could have given it then it must be deemed to be in excess of jurisdiction and in that case also it is liable to be quashed
The power of a superior court in such cases is not that of an Appellate Authority overriding the decision of the Administrative Tribunal in this case the Regional Transport AuthorityAssociated Provincial Picture Houses Ltd vs Wednesbury Corporation 1
The Petitioners submitted that the Regional Transport Authority be directed to grant renewal of the permits for a period of three years in other words what the petitioners want is not only that the order of the Regional Transport Authority be quashed but it should be substituted by the order directing the Authority to act in a particular manner that is to renew the permits for a period of not less than three and not more than five years
By doing this this Court will be directing an order in substitution of the order passed and not merely quashing the order made by the Regional Transport Authority but also amending it
In England the power of certiorari did not extend to ordering an amendment of an order The King vs Willesden Justices Exparte Utley 2
In that case a person was properly convicted for an offence by the Justices but was erroneously fined in a sum in excess of the statutory maximum and it was held that the conviction was bad on the face of it and the order must be quashed because unlike the Appeal Court a court acting in its extraordinary prerogative jurisdiction had no power to amend the order and all that could be decided in a case of that kind was whether the conviction was good in law
In a number of other cases a similar view was taken by the English Courts
Even where the matter is one which falls under the power of issuing a mandamus the order can only command the Tribunals to hear and decide the particular matter and no writ will be issued dictating to them in what manner they are to decide
This rule holds good even though the decision is erroneous not only as to facts but also in point of law and although the particular circumstances of the case are such that 1  2 165 there is only one way of performing the duty in question
Halsbury s Laws of England 3rd Edition Vol
11 page 101 paragraph 187
This principle was accepted in Veerappa Pillai vs Raman Raman Ltd1
Chandrasekhara Iyer J while delivering the judgment of this Court said at page 596  Further it will be noticed that the High Court here did not content itself with merely quashing the proceedings it went further and directed the Regional Transport Authority Tanjore  to grant to the petitioner permit in respect of the five buses in respect of which a joint application was made origin
ally by the petitioner and Balasubramania Pillai and that in case the above buses have been condemned the petitioner shall be at liberty to provide substitutes within such time as may be prescribed by the authorities 
Such a direction was clearly in excess of its powers and jurisdiction
In Basappa vs Nagappa 2 this case was referred to with approval
The petitioners relying upon two judgments of this Court submitted that the impugned order was severable and it should be severed and the portion which is not in accordance with law should be excised and a direction given that the tribunal should specify a period of not less than three years and not exceeding five years
In my opinion this is nothing more than substituting an order in place of the order passed by the Regional Transport Authority itself
It must be recognised that under article 32 this Court has the power to enforce fundamental rights and a right under article 32 itself is a fundamental right but when this Court exercises the power of judicial review in the matter of enforcement of fundamental rights which are alleged to be infringed because of some order passed by an administrative Tribunal in the exercise of its jurisdiction this Court has to proceed on certain principles and one of the recognised principles is that   in the whole of administrative law the functions that can be performed by judicial review 1 2  166 are fairly limited 
The role of the courts in this field  is to serve as a check on the administrative branch of government a check against excess of power and abusive exercise of power in derogation of private right 
The judicial function is thus one of control we may expect  judicial review to check not to supplant administrative action Bernard Schwartz on American Administrative Law page 113
The question is whether the powers given under article 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 nationalisa tion in the offing do not give it much support
In giving such a direction as is proposed this Court will be substituting itself in place of the Regional Transport Authority and acting as if it was the Authority itself which is beyond the scope of judicial review
Reliance was placed by the petitioners on Shewpujanrai Indrasanrai Ltd vs The Collector of Customs 1
In that case the Collector of Customs purporting to act under section 1678 of the Sea Customs Act ordered 1 confiscation of the smuggled gold 2 in lieu thereof an option to pay fine of Rs 10 lakhs and 3 in addition to pay proper customs duty and other charges leviable thereupon and 4 imposed a condition that the release of gold will be subject to the production of a permit from the Reserve Bank of India within a period specified in the order
It was conceded that the Collector had no power to impose the last two conditions and it was contended that the order being a composite and integrated whole part of it was within jurisdiction of the Collector and part of it without and the superior court must quash the whole order as being in excess of jurisdiction
Relying upon 1  167 the judgment of this court in R M D Chamarbaugwalla vs Union of India1 this Court was of the opinion that there was no difficulty in enforcing the order even after excising the two illegal conditions
section K Das J in delivering the judgment of the Court said  There is no legal difficulty in enforcing the rest of the impugned order after separating the invalid conditions therefrom For these reasons we agree with the Division Bench of the High Court that the invalid conditions imposed by the Collector in this case are severable from the rest of the impugned order
 But these observations have to be read in the context of the facts and the decision of the case The King vs Willesden Justices Ex parte Utley 2 was cited but was not applied because of the observations of this Court in T C Basappa vs T Nagappa  Anr
4 to which I shall refer presently
The main ground on which the order of severability was passed was that the appellant in that case had not merely asked for a writ of certiorari but also for a writ of mandamus and prohibition and that the prayers were neither unnecessary nor mere surplusages and they were appropriate for the purpose of getting rid of conditions imposed by the Collector for the release of gold
It was held in that case that if a decision of an inferior court or tribunal was partly within and partly without its jurisdiction prohibition will lie against what is in excess of juris diction and reference was made to Halsbury s Laws of England 3rd Edition Vol 11 page 116 paragraph 216 and also to Shree Ram Krishna Dalmia vs Shri Justice section R Tendolkar  Ors
4 where the principle of severability was applied
In Shewpujanrai s case  two passages from Basappa vs Nagappa3 at page 257 were quoted with approval
After a review of these various authorities section K Das J said at page 844  Therefore we do not see any insuperable difficulty in the present case in prohibiting respondents 1 to 3 from enforcing the two invalid conditions 1  3  2 5   4   168 which the Collector of Customs had imposed for release of the gold on payment of the fine in lieu of confiscation and the time limit of four months fixed by the Collector must accordingly run from the date of this order
 It will be seen therefore that in Shewpujanrai s case 1 although this Court was of the opinion that the powers of the Court are wider than those of the Courts in England yet in the exercise of those powers of issuing writs the broad and fundamental principles that regulate the exercise of jurisdiction granting such writs in English law will be observed
The case is no authority for saying nor did it lay down that in the matter of judicial review this Court will proceed on different principles than the Courts in England
The main decision in the case proceeded on the ground that a writ of prohibition was prayed for in granting which it was open to the Court to issue a writ quashing that portion which was in excess of jurisdiction
Besides in that case by severing the illegal conditions which had been imposed the order of the Collector still remained one enforceable and not a truncated order which would be incomplete by the excision of those two conditions
Can it be said in the instant case that the impugned order can remain one whole integrated and intelligible order by taking away the condition in regard to the period and could it fall within the rules laid down in Chamarbaughwalla s case 2 
The 6th condition there laid down at page 951 was that if after the invalid portion was expunged what remained could not be enforced without making alterations and modifications therein then the whole must be struck down
Can it be said as it could be said in Shewpujanrai s case 1 that the order is enforceable without the period and without making a substituted order in place of the order made by the Regional Transport Authority
In my opinion it cannot be
Then I come to the consideration in T C Basappa vs T Nagappa 3
That was a case which arose in appeal against the decision of the Mysore High Court 1  2  3  169 given under article 226 in regard to an election matter where the Election Tribunal had found certain issues in favour of the petitioner and had declared the election to be void and the respondent filed an application under article 226 for a writ or direction in the nature of certiorari which was allowed
The question raised in this Court was that the Tribunal whose order had been quashed had neither acted without jurisdiction nor was there any error apparent on the face of the record and the two questions which arose for decision were 1 what was the extent of the power of the High Court in exercise of its powers under Art 226 to grant a writ of certiorari to quash the adjudication of an Election Tribunal and 2 whether such grounds did exist
After reference to the principles on which superior courts in England act in issuing writs of certiorari and how the power had developed Mukherjea J as he then was observed that under the Constitution of India new and wide power had been conferred on the High Courts of issuing directions orders or writs primarily for the enforcement of fundamental rights and also included the power of issuing such directions for any other purpose
At p 256 the learned Judge said In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges
We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law Italics are mine
It will thus be seen that in that case this court did not hold that the principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law were not to be keptin view
As a matter of fact the learned Judge then gave quotations from 22 170 various English decisions eg Rex vs Electricity Commissioners 1 King vs Nat Bell Liquors Limited 2
At page 258 a passage from the judgment of Morris L J in Rex vs Northumberland Compensation Appellate Tribunal3 was quoted with approval and then a passage from the judgment of Chandrasekhara Iyer J in Veerappa Pillai vs Raman  Raman Ltd 4 at p 594  However extensive the jurisdiction may be it seems to us that it is not so wide or large as to enable the High Court to convert itself into a Court of Appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to be made was quoted
After referring to these various passages Mukherjea J as he then was said  These passages indicate with sufficient fullness the general principles that govern the exercise of jurisdiction in the matter of granting writs of certiorari under article 226 of the Constitution
 It cannot therefore be said that in Basappa s case this Court said or intended to say that a superior court acts in a manner different from that in which the courts acted in England
All it intended to say was that in that case on the facts and circumstances found by the High Court a writ of certiorari was rightly issued
This Court did not say that in issuing a writ of certiorari a superior court could substitute orders or direct what the order should be
In other words judicial review extends to a check on administrative tribunals and not to supplant administrative action
In my opinion the power of this Court only extends to quashing and not to substituting an order in place of what an administrative tribunal has done or to direct what it should do
Reference was made by the learned Solicitor General to Kochunni vs State of madras 6 in which certain observations were made as to the power of this Court to frame its writs or orders to suit the exigencies of the case
That was not a case of judicial review of administrative action but of the exercise of 1 at p 205
2 at p 156
3  at P 357
4 5  6  171 the powers under article 32 in a case where the validity of an Act eo instanti abridging the petitioner s rights under article 191f was in dispute
The decision the observations and the rule laid down must be read in the context and in the circumstances of that case
United Motors Transport Co vs Sree Lakshmi Motors Transport Co Ltd 1 also was not a case of judicial review but an appeal from a decree and does not affect the question now before us
The petitioners applied to the High Court under articles 226  227 of the Constitution against the order made by the Regional Transport Authority but that was dismissed and a certificate for appeal was also refused by the High Court
As to what is the legal effect of the order of the High Court which has become final by its not being appealed against I do not propose to discuss in this case as we have not had the advantage of its being debated at the Bar
In my opinion no order commanding the Regional Transport Authority as to what order it should pass and what period should be substituted in place of the order passed by the Regional Transport Authority can be made by this Court and all that this Court can do is to quash the order and leave it to the Regional Transport Authority to reconsider the matter and exercise its discretion keeping in view the law as laid down by this Court
As the petitioners  success would be partial I leave the parties to bear their own costs in this Court
ORDERS OF COURT
In Petitions Nos 54 and 75 of 1959
In accordance with the opinion of the majority we allow the petitions and quash that part of the order complained against which specified the renewal of the permits upto March 31 1959 and direct the Regional Transport Authority Bangalore to comply with the requirements of the law as laid down in section 58 1a read with section 582 in the order of renewal made by it in favour of the petitioners on December 15 1958
The petitioners will get one set of costs from the Mysore 1 172 Government Road Transport Department which alone has contested these petitions
In Petition No 76 of 1959
In accordance with the opinion of the majority we allow the petition and quash that part of the order complained against which specified the renewal of the permits upto September 30 1959 and direct the Authorities to comply with the requirements of the law as laid down in section 581a read with section 582 in the order of renewal made by them in favour of the petitioners on April 30 1959
The petitioners will get their costs except hearing costs as the hearing was common with Petition No 75 of 1959 from the Mysore Government Road Transport Department which alone has opposed the petition


Summary:
The stage carriage permits of the petitioners who were also the petitioners in Writ Petition NO
75 of 1959 previously reported were expiring on 31st March 1958 and were renewed up to March 31 959
A fresh scheme of nationalisation having 131 been approved and published under section 68C of the Motor Vehicles Act the Regional Transport Authority in order to avoid inconvenience to the public granted temporary permits to the petitioners till the State Transport Department obtained their permits
The Department applied for permits under section 68F1 of the Act in accordance with the scheme admittedly less than six weeks before the date when they were to take effect contrary to the provision of section 572 of the Act
The petitioners had also applied for renewal of their permits
The Regional Transport Authority issued permits to the Department and rejected the renewal applications of the petitioners
The petitioners moved the High Court under article 226 of the Constitution for quashing that order
The High Court held that the issue of permits to the Department was invalid as the provision of section 572 had not been complied with and the refusal of renewal of the petitioners  permits was incorrect but it dismissed the Writ Petition on the ground that the relief that could be granted to the petitioners could only be short lived
The petitioners applied for a certificate to enable them to appeal to this Court and while that application lay pending applied to this Court under article 32 of the Constitution
It was contended on their behalf that before the renewal application could be rejected and permits granted to the Department under section 68F1 of the Act the Department must apply for permits in respect of all the routes covered by the scheme so that there could be no possibility of any discrimination between an operator and an operator in infringement of article 14 of the Constitution as also their rights to carry on their business under article 191g of the Constitution
It was further contended that non compliance with the provision of section 572 of the Act disentitled the Department to any permits at all
It was contended on behalf of the Department that it was open to it to implement the scheme by stage and it was denied that there could be any discrimination in doing so or that section 572 applied to an application under section 68F1 of the Act
Held per Sinha CJ Imam Wanchoo and Das Gupta JJ that it was clear from the language of s 68F of the  that an application by a State Transport Undertaking for a permit thereunder must be made in the manner prescribed by Ch
IV of the Act and therefore there could be no doubt that such an application must fall within the purview of section 572 of the Act
Consequently the orders granting the application for permits made by the State Transport Department in the instant case admittedly in breach of section 572 of the Act were on that ground alone liable to be quashed
Section 68C of the Act contemplates that where there is no intention to operate an entire route but a portion of it that portion alone should be specified as the route and not the whole of it or any portion thereof as in the instant case
The scheme however clearly intended that all the routes in their entirety 132 were to be taken over and so the qualifying words were mere surplusage
Per Kapur J On a proper construction of sections 68C and 68F of the Act it would not be correct to say that the Legislature intended that the scheme as approved must be implemented all at once or not at all
It would be impractical to suggest that the whole scheme should be implemented in a rigid manner
Some flexibility in implementing it must necessarily be implied for otherwise nationalisation of transport services the accepted State policy in India was likely to be indefinitely held up if not thwarted
The language used by section 68F lends no support to such a contention nor do the words  in pursuance of  occurring therein mean that the whole of the scheme has to be put into operation and not a portion of it
Bradford Corporation vs Myers  referred to If the State cannot take over routes for which application can be immediately made the taking over must become not only difficult but extremely expensive as other interests may supervene in the meantime
Where therefore it intends to run a scheme within a reasonable time there can be no reason why it should not apply for different routes within a reasonable time so long as it acts honestly fairly and without any oblique motives
Since the State Undertaking in the present case had imple mented a part of the scheme and made fresh applications for permits in the manner provided by section 572 and their relevant provisions of Act it is not necessary to pass a formal order quashing the permits granted in its favour
K N Guruswamy vs The State of Mysore 1955 1 section CR 305 referred to