Case: Y. Mahaboob Sheriff &amp; Sons &amp; Others Vs. Mysore State Transport Authority &amp; Others

in the Act by the Amending Act No. 109 of 1956, the amendments made by the State legislatures earlier fell through and the Central legislature did not think it fit to give power to the State legislatures to reduce the period below three years in the case of a permit. If it were intended that a permit may be granted for less than three years and a renewal may be made also for less than three years, we would have expected some provision to that effect in the Amending Act of 1956, for the Central legislature could not be unaware of the amendments made by the various State legislatures.In the circumstances we are of opinion that the duration of a permit under S. 58(1) (a) being not less than three years and more than five years, the same applies to a renewal. We therefore hold that reading Ss. 58(1)(a) and 58(2) together, a renewal must also be governed by the same provision which governs the duration of a permit. This brings us to the question of relief to be granted to the petitioners. It is contended on behalf of the Department that all that this Court can do is to quash the order of 15-12-1958, and send the case back to the Authority for consideration of the question of renewal afresh.On the other hand, the petitioners contend that this Court should quash the illegal condition limiting the duration of the renewal to one year and direct the Authority to specify a period of not less than three years and not more than five years in conformity with S. 58(1)(a) in the order of renewal. This raises the question of severability of a part of the order passed by the Authority. The principles on which any unconstitutional provision can be severed and struck down leaving other parts of a statute untouched were laid down by this Court in R. M. D. Chamarbaugwalla v. Union of India, 1957 SCR 930 : ( (S) AIR 1957 SC 628 ) 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 Sewpujanrai Indrasanrai Ltd. v. The Collector of Customs, 1959 SCR 821 : (AIR 1958 SC 845 ), 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 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 31-3-1958, and the petitioners had been plying their stage carriages right up to the time when the order was passed on 15-12-1958; they could not do so without a permit in view of S. 42 of the Act. Therefore, renewal in these cases was certain when the order was passed on 15-12-1958. 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. 11. The next question is what order should be passed in the circumstances. This depends on the exigencies of each case, for this Court is not confined by the technical rules relating to issue of writs by the English Courts. In T. C. Basappa v. T. Nagappa, 1955-1 SCR 250 : (AIR 1954 SC 440 ), this Court observed as follows at p. 256 (of SCR): (at p. 443 of AIR):"The language used in Arts. 32 and 226 of our Constitution is very wide and the powers of the S. C. 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 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." It is therefore open to us to issue a direction in the nature of mandamus requiring the Authority to follow the law as laid down by this Court in respect to the order of renewal granted by it in accordance with S. 58(1)(a) .It is true that where it is a case of discretion of an authority, this Court will only quash the order and ask the authority to reconsider the matter if the discretion has not been properly exercised. But in this case, the discretion, is not absolute; it is circumscribed by the provisions of S. 58(1)(a), which lays down a duty on the Authority which grants a renewal to specify a period which is not less than three years and not more than five years. The duty being laid on the Authority which has in this case decided to grant a renewal to specify a period not less than three and now more than five years as the duration of the renewal, it is in our opinion open to this Court to direct the Authority to carry out the duty laid on it by S. 58(1)(a) read with S. 58(2), when it has granted the renewal.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]8. 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 20-2-1959, not to renew the permits of the petitioners. Eventually, the Regional Transport Authority, Bangalore, met on 29-3-1959; 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 30-4-1959, when the permits of the petitioners were renewed till 30-9-1959. It is this order which is being challenged by the present petition. The petitioners case is that they are entitled to carry on the business of transport of passengers as a fundamental right guaranteed to them under Art. 19(1)(g) of the Constitution, and that this right can only be restricted in the manner provided by the Act which is a regulatory measure dealing with motor vehicles. They contend that they were entitled under S. 58 of the Act to renewal of their permits for at least three years in case the Authorities decided to grant renewal on the applications which they had made in January 1958 and in so far as the Authorities gave them renewal only upto 30-9-1958, 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 concerned15. This case is similar to Writ Petitions Nos. 54 and 75 of 1959, in which judgment has been just delivered to day and raises the same two questions which have been raised there. The only different is that there is no scheme prepared under Chapter IV-A in connection with the routes with which we are concerned here. We have considered the interpretation of S. 58(2) read with S. 58(1)(a) in Writ Petitions Nos. 75 and 54 of 1959 and the form of the order to be passed. For reasons given in those petitions, we are of opinion that this petition should be allowed.