judgement:
vil Appeal No. 1522 of 1987.
From the Judgment and order dated 29.7.1986 of the Punjab and Haryana High Court in Civil Writ Petition No. 3464 of 1986.
Mohan Pandey and Baldev Kapoor for the Appellant.
N.K. Sodhi, Mrs. Indu Goswamy for the Respondent.
663 The following Order of the Court was delivered: ORDER Special leave granted.
The appeal is heard.
This appeal by special leave is filed against the Order dated 29.7.
1986 passed by the High Court of Punjab and Haryana rejecting the writ petition filed by the appellant inter alia for the issue of the writ in the nature of manda mus, directing the State Transport Commissioner, Punjab, who is exercising the powers of the Regional Transport authori ties in the State of Punjab to grant permits to ply stage carriages on the route Taran Taran Muktsar via Ferozepur and Sadiq under Chapter IV of the (hereinafter referred to as 'the Act ') and to dispose of the applications for renewal of stage carriage permits which are pending before the Regional Transport authorities.
The appellant was a transferee of a bus along with two permits to operate one return trip on the route Taran Taran Muktsar via Ferozepur and Sadiq.
Those permits could not be renewed owing to the default on the part of the transferor to make within time an application for the renew al of the said permits before the permits were actually transferred.
Therefore, the State Transport Commissioner, Punjab, who was exercising the powers of the Regional Trans port authorities instead of granting regular permits on applications made under section 46 of the Act granted tempo rary permits in favour of the appellant on the route in question.
Thereafter despite the request of the appellant to issue regular permits the State Transport Commissioner proceeded to invite applications for the grant of temporary stage carriage permits.
Pursuant to the said notification the appellant and some others made applications.
For some reasons which need not be set out here the application of the appellant was rejected and the temporary permits were granted in favour of the 2nd respondent.
The appeals filed against the order granting temporary permits in favour of the 2nd respondent became infructuous as the period for which they had been granted expired before the appeals could be disposed of.
Be that as it may, the main grievance of the appellant has been that the State Transport Commissioner, Punjab, who is exercising the powers of the Regional Transport authori ties has failed to discharge his duty under the Act which requires him to consider and grant stage carriage permits on applications made under section 46 read with sec 664 tion 57(2) of the Act where there is need to do so to appli cants who are eligible to be granted such permits and to grant renewal of such permits on applications for renewal made under section 58 of the Act.
The appellant, therefore, bled the writ petition, out of which this appeal arises, before the High Court of Punjab and Haryana for appropriate relief.
The said writ petition was dismissed at the stage of admission.
Aggrieved by the order of the High Court the appellant has filed this appeal by special leave.
When the Special Leave Petition came up for hearing on September 16, 1986 notice was issued to the State Transport Commissioner requiring him to show cause as to why he should not be directed to take action on applications made under section 46 of the Act for granting permits to ply stage carriages instead of issuing temporary permits under section 62 of the Act periodically, even though there was permanent need to grant regular stage carriage permits.
In reply to the said notice the 1st Respondent has filed a counter affidavit, the relevant portion of which is as follows: " In the State of Punjab two separate schemes with regard to the grant of stage carriage permits in favour of the State Trans port Undertakings and the Private Operators were approved by the Government of Punjab under sub section (2) of section 68(D) of the .
Out of the two schemes one is called 'Punjab Roadways Scheme ' operative in the erstwhile Punjab areas and the other is called 'Pepsu Road Transport Corporation Scheme ' operative in the erstwhile Pepsu areas.
The schemes for Punjab Roadways and Pepsu Road Transport Corporation were published on 19.11.1969 and 18.2.1972 respec tively.
A copy of both the schemes are exhib ited as Annexure R1 and R2.
According to the above notifications the Punjab Government had announced that: (i) 60% operation will be undertaken by the Punjab Roadways and the remaining 40% by the existing private operators and new entrants in the ratio of 30: 10, respectively in the areas of erstwhile Punjab State.
(ii) 60% operation will be undertaken by the Pepsu Road Transport Corporation and 40% by the private operators in Pepsu territory.
665 (iii) Notifications further provided that the schemes will have the effect for a period of 7 years (upto 18.11.1976) in Punjab State and will last till 30th June 1977 in the Pepsu territory.
(iv) After the expiry of 7 years (upto 18.11.1976) in the case of Punjab Scheme and from 1st July, 1977 in the Pepsu territory, 1/3rd operations of the private operators will be taken over by the Punjab Roadways/Pepsu Road Transport Corporation every year to complete the take over in three years.
Neither the Punjab Roadways nor the Pepsu Transport Corporation have taken over the operations from the private operators in the terms of above mentioned notifications nor new schemes have been announced by the Govern ment.
The transport operations have, however, to be continued as at present to save the public from inconvenience.
At the same time it will not be advisable to grant regular permits on long terms basis in the absence of any transport policy announced by the Punjab Government.
Under these circumstances I am granting/issuing permits on temporary basis after following the prescribed procedure laid down under section 47 of the and after giving due hearings to all the applicants at the time of initial grant.
As soon as the new transport policy is fina lised by the Government all the stage carriage permits granted on temporary basis due to non finalisation of transport policy will be granted on regular basis after following the procedure as laid down under sections 57(2) and 57(3) of the .
It may, however, be added here that the State Government is in the process of finalising a new Transport policy.
" A reading of the counter affidavit filed by the State Transport Commissioner, Punjab practically does not set up any defence at all to the prayer made by the appellant.
The counter affidavit refers to two schemes, namely, the Punjab Roadways Scheme and the Pepsu Road Transport Corporation Scheme approved under section 68 D of the Act, which were published on 19.11.1969 and 18.2.1972 respectively.
It is, however, admitted that neither the Punjab Roadways nor the Pepsu Road Transport Corporation have taken over the opera tions from the private operators in terms of the above mentioned notifica 666 tions nor any new scheme has been announced by the Punjab Government.
The 1st Respondent further states that since there was general inconvenience, the temporary permits were being issued after following the prescribed procedure laid down under the Act.
The affidavit further says that due to the non finalisation of the transport policy by the State Government it was not possible to issue regular permits to run stage carriages by following the procedure prescribed under sections 57(2) and 57(3) of the Act.
We are of the view that the entire policy followed by the State Government and the 1st Respondent is contrary to the general scheme of the Act.
The schemes said to have been published under section 68 D of the Act do not specify any notified routes or any notified areas.
It is not possible also to find out from the said scheme whether private operators have been excluded from any particular area of route.
The schemes appear to be incomplete and, therefore, are ineffective.
In the above situation the Regional Transport authorities whose functions have been delegated under the Act to the State Transport Commissioner, Punjab, cannot decline to grant stage carriage permits on applications properly made to them by intending operators only because the State Government has not announced its transport policy.
The State Government cannot have any policy different from or independent of the provisions contained in Chapter IV and Chapter IV A of the Act.
The Transport Authorities which are statutory authori ties have to discharge the duties imposed on them by the Act without waiting for any policy to be announced by the State Government.
In doing so primary consideration should be given to the public interest and also to the fundamental right of the citizens to carry on motor transport business in accordance with law.
It is not denied that there is a permanent need to grant permits to ply stage carriages on the several routes in the State of Punjab.
In the circum stances, the policy adopted by the 1st Respondent, namely, issuing of temporary permits from time to time, appears to be a highly irregular one.
It is against the language and spirit of section 62 of the Act, which provides for the grant of temporary permits.
This Court has observed in several decisions that a Regional Transport Authority would be failing in its duty if it grants repeatedly temporary permits to ply stage carriages on routes even though it is aware of the fact that there is a permanent need for grant ing regular permits in respect of the said routes.
The fact that the State of Punjab is thinking of finalising a new transport policy can have no bearing on the question in issue.
We are, therefore, of the view that the 1st Respondent cannot successfully resist the writ petition out of which this appeal arises.
In the circumstances we feel that it is appropriate to issue a writ in the 667 nature of mandamus to the Regional Transport authorities in Punjab.
whose duties are being discharged by the State Transport Commissioner, Punjab, to take immediate steps to invite applications suo motu under section 57(2) of the Act for issuing regular stage carriage permits to deserving applicants, to grant stage carriage permits to deserving applications who make applications for the stage carriage permits in accordance with law and to dispose of the appli cations for renewal, if any, made under section 58 of the Act by the holders of stage carriage permits.
We accordingly direct the Regional Transport authorities in the State of Punjab to take immediate steps to invite applications suo moat under section 57(2) of the Act for issuing regular permits to deserving applicants to ply stage carriages in respect of the routes where there is a permanent need, to dispose of the applications made by persons who wish to ply stage carriages on the said routes in accordance with law and to dispose of the applications that may be pending before the Regional Transport authorities for renewal of stage carriage permits under section 58 of the Act.
All these steps should be taken within four months from today.
The temporary permits which are now in force shall cease on the expiry of the period of four months and the Regional Transport authorities are directed not to issue any fresh temporary permits where there is permanent need for granting a stage carriage permits after four months.
This appeal is allowed accordingly.
There shall, howev er, be no order as to costs.
A copy of this order shall be sent to the Chief Secre tary to the State of Punjab within a week for information and implementation of the above directions.
H.L.C. Appeal allowed.

summary:
The appellant, a stage carriage operator, applied for renewal of a permit to ply his bus on a particular route but was granted only a temporary permit to do so.
Thereafter he applied for issue of a regular permit, but once again, action was initiated for issue of a temporary permit only.
Aggrieved by this approach of respondent No. 1, who was exercising the power of the Regional Transport authorities in the State, the appellant filed a writ petition seeking a direction that respondent No. 1 should consider and grant stage carriage permits to eligible persons under section 46 read with section 57(2) and grant renewal of such permits under section 58 of the .
The High Court dismissed the petition at the admission stage.
Respondent No. 1, in his counter affidavit, stated that the State Government had approved and published two Schemes under section 68(D) (2) of the Act for grant of stage carriage permits in favour of State Transport Undertakings and pri vate operators in two specified areas of the State which envisaged the complete take over of all the routes by the State Transport Undertakings in a phased manner within 3 years of the expiry of the Scheme.
Since the State Transport Undertakings had not taken over the operations from the private operators in accordance with the two Schemes and the State Government had neither announced new schemes to re place them, nor declared its transport policy, Respondent No. 1 had considered it inadvisable to grant regular permits on long term basis and was issuing temporary permits only.
Allowing the appeal by special leave, 662 HELD: The Transport Authorities which are statutory authorities have to discharge the duties imposed on them by the Act without waiting for any policy to be announced by the State Government.
In doing so, primary consideration should be given to the public interest and also to the fundamental right of the citizens to carry on motor trans port business in accordance with law.
This Court has ob served in several decisions that a Regional Transport Au thority would be failing in its duty if it grants repeatedly temporary permits to ply stage carriages on routes even though it is aware of the fact that there is a permanent need for granting regular permits in respect of the said routes.
[666E; G] The entire policy followed by the State Government and the 1st Respondent is contrary to the general scheme of the Act.
The schemes said to have been published under s.68 D do not specify any notified routes or any notified areas.
It is not possible also to find out from the said schemes whether private operators have been excluded from any particular area or route.
The schemes appear to be incomplete and, therefore, are ineffective.
In the above situation the Regional Transport authorities whose functions have been delegated under the Act to the State Transport Commissioner, Punjab, cannot decline to grant stage carriage permits on applications properly made to them by intending operators only because the State Government has not announced its transport policy.
The State Government cannot have any policy different from or independent of the provisions contained in Chapters IV and IV A of the Act.
[666B E] In the instant case, it is not denied that there is a permanent need to grant permits to ply stage carriages on the several routes in the State of Punjab.
The policy adopt ed by the 1st Respondent, namely, issuing of temporary permits from time to time, is highly irregular and is against the language and spirit of section 62 of the Act, which provides for the grant of temporary permits.
[666F]


judgement:
ases Nos.
300 to 304 of 1951.
Appeals under article 132(1) of the Constitution of India from a. judgment dated 2nd August, 1951, of the High Court of Judicature at Orissa (Ray C.J. and Narasimham J.) in Miscellaneous Judicial Cases Nos. 126, 127, 128, 129 and 130 of 1951.
M.C. Setalvad, Attorney General for India (G. N. Joshi, with him) for the appellant in all the appeals.
N.C. Chatterjee (H.J. Umrigar and A.N. Roy, with him) for the respondent in Case No. 300 of 1951.
Roshan Lal for the respondents in Cases Nos. 301 and 304.
N.C. Chatterjee (A. N. Roy, with him) for the respondent in Case No. 302 of 1951.
N.C. Chatterjee (A. N. Roy and A.N. Sinha, with him) for the respondent in Case No. 303 of 1951.
October 25.
the Judgment of the Court was delivered by KANIA C.J.
These are five companion appeals from the judgment of the High Court at Orissa, delivered on five petitions filed by the respondent in each of the appeals, to obtain from the Court a writ of mandamus and/or directions under article 226 of 'the Constitution of India.
Each of the respondents alleged that between 1941 and 1947 he had agreed to take from the Ruler of Keonjhar a mining lease and had entered into possession of the area.
Some of the petitioners alleged that they had spent money on the development of the mines and installed machinery to work the same.
It is however common ground that there was no registered lease in favour of any of the respondents before 1947.
On the 14th December, 1947, the Ruler of Keonjhar entered into a merger agreement with the Dominion of India and as from the 1st January, 1948, the State was merged in the Dominion of India.
After signing the merger agreement the Ruler gave registered 30 leases on the 27th December, 1947, to the respondents in these appeals.
In pursuance of the exercise of the powers conferred on the Government of Orissa by section 4 of the Extra Provincial Jurisdiction Act, 1949, read with Notifica tion No. 172/1B dated 23rd March, 1948, of the Government of India, the Government of Orissa issued a notification dated the 8th of June, 1949, declaring, inter alia, the said leases to be void and not binding on it.
This annulment was made expressly on the ground that these commitments were not reasonable and bona fide.
Thereafter, the respondents, along with others approached the Orissa Government to give them leases and the State Government gave them temporary permits to work the mines in November, 1949.
On the 3rd July, 1951, however they passed an order cancelling the temporary per mits and directed the respondents to remove their assets appertaining to the respective mines within a fortnight.
The respondents thereupon filed the petitions before the Orissa High Court praying for writs or directions in the nature of mandamus against the State of Orissa directing them to withdraw the notices dated the 8th of June and 3rd of July, 1951, and to forbear from acting upon or giving effect to the same.
The Court, after noticing the rival contentions of the parties and rejecting the contention that the State of Orissa had cancelled the permits and were attempting to take possession as an act of State, posed the question "whether the law of annulment relied upon by the State was applicable to the mining leases granted to the petitioners, or in the alternative, whether the State had any right in law to cancel the leases before the period mentioned therein.
" Referring to the contention of the State rounded on the acceptance by the respondents of the temporary permits and the estoppel arising therefrom, Ray C.J. in his judgment stated as follows : "In determining the validity of this contention (relating to the temporary permit and estoppel arising therefrom) the circumstances under which these applications were made and the legal implications of such applications and the permissions granted under 31 them will have to be considered.
It is remote from our intention to express any opinion in this summary proceeding as to the respective merits of the rival contentions.
I am however satisfied that in the context of events and in the logic of circumstances attending thereto there is a case to be tried.
" He next considered the scope of the writ of mandamus and came to the conclusion that "at the moment" the respondents had no alternative legal remedy, equally conven ient, beneficial and effectual because the respondents could not file a suit till after the expiry of the period of sixty days required for the purpose under section 80 of the Civil Procedure Code and he thought that unless protected by the Court in the meanwhile the respondents would undergo irrepa rable and irremediable loss of possession of the mining leases involving a huge waste of labour, machinery and other resources of equipments of immense value hardly capable of being remedied by payments of money as compensation.
The Bench therefore passed an order dated 2nd August, 1951, as follows : "We direct that till three months from today or one week after the institution of their (respondents ') contemplated suit, whichever is earlier, the Government of the State of Orissa should refrain from disturbing the petitioners ' possession over the mining areas in question and that thereafter this order will cease to have effect.
" They gave further directions as to how the mines were to be worked during the aforesaid period.
Towards the end of the judgment it was stated, "In the result, the petitions are allowed in part to the limited extent indicated above." Narasimham J. agreed with the order set out in the judgment of the Chief Justice although his judgment shows the concur rence to be very halting.
He stated that although he was reluctant to exercise the powers under article 226 because the present respondents could file a suit, yet as in view of section 80 of the Civil Procedure Code there would be an unavoidable delay resulting in irreparable loss to the respondents he agreed that the order should be passed as mentioned in the judgment of the Chief Justice, 32 Towards the end of his judgment he stated as follows: "It should however be clearly emphasized that the observations contained in this judgment should not be taken as pre judg ing any question which may.arise for the consideration of the Civil Court in the event of the petitioners filing a regular suit and seeking interim relief from that Court by way of temporary injunction, appointment of receiver or otherwise.
If such an application is made, the questions as to whether the petitioners have a prima facie case for trial or whether such a suit is maintainable or whether the bal ance of convenience requires that they should be permitted to remain in possession of the leasehold property till the termination of the suit and other allied matters should all be dealt with by the Court concerned without being influ enced in any way by the observations contained in this judgment.
Those observations have been made for the limited purpose of granting temporary relief under article 226 and are not intended to embarrass either party or the Court in future litigation.
" It appears that thereafter an application was made to stay the operation of this order to enable the Government of Orissa to appeal against the order of the 2nd of August.
The same Judges on the 6th of August stayed the operation of the order for fifteen days and observed as follows : "The effect of the order (of 2nd August, 1951) is that except giving them (respondents in these appeals) some interim measure of relief for the period during which the petition ers were without remedy, we were not inclined to accept the petition and issue a writ in the nature of mandamus, as prayed for.
" The State of Orissa has come on appeal to us and after hearing the arguments on both sides we came to the conclusion that the order of the High Court could not be sustained.
We accordingly passed the following order on the 15th of October: "These five appeals are allowed and the order of the High Court is set aside in each case.
As the High Court has passed no other orders on the petitions.
and indeed has stated that the Court was not prepared to 33 pass any ,other orders on the petitions, the petitions stand dismissed.
The respondents will pay the costs of the ap peals.
We shall give our reasons later on.
" Our reasons are these: Article ,226 of the Constitution of India runs as fol lows: 226.
(1)"Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred on a High Court by clause (1) shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article The language of the Article shows that the issuing of writs or directions by the Court is not rounded only on its decision that a right of the aggrieved party under Part II1 of the Constitution (Fundamental Rights) has been in fringed.
It can also issue writs or give similar directions for any other purpose.
The concluding words of article 226 have to be read in the context of what precedes the same.
Therefore the existence of the right is the foundation of the exercise of jurisdiction of the Court under this Arti cle.
The judgment of the Orissa High Court under appeal, however, shows that the Judges have decided nothing at all in respect of the rights of the parties.
Indeed they have expressly stated that their observations should not in any way be considered as deciding any of the rights or conten tions of the parties raised in the petitions.
The whole judgment shows that because of the requirement of section 80 of the Civil Procedure Code the present respondents could not file a suit against the Government for at least sixty days, the 5 34 respondent 's position should not in the interval be dis turbed and accordingly the Court gave the directions in its order of the 2nd of August, 1951.
If there was any doubt about the nature of the relief desired to be granted by the order of 2nd August the same Judges have made it per fectly clear by their order of the 6th of August, wherein they have stated that except for these directions they were not prepared to make any other order on the petitions.
The result therefore is that while the Judges declined to inves tigate and pronounce on the rights of the parties and ex pressly kept the determination thereof in abeyance in the suit proposed to be filed by the present respondents, they gave directions for interim relief till such suit was filed.
It must be noted that with the passing of the order of the 2nd August, 1951, containing directions in the nature of interim relief the petitions were completely disposed of and have not been kept pending for disposal.
Those directions embody therefore the final order passed by the Court on these petitions.
A preliminary objection was raised about the maintainability of the appeals on the ground that no final orders were passed on the petitions.
That objection must fail in view of the fact that with these orders the petitions were disposed of finally and nothing further remained to be done in respect of the petitions.
The fact that the operation of the order is limited to three months or a week after the filing of the intended suit does not prevent the order from being final.
On behalf of the appellant it was urged that the Court had no jurisdiction to pass such orders under article 226 under the circumstances of the case.
This is not a case where the Court before finally disposing of a petition under article 226 gave directions in the nature of interim relief for the purpose of maintaining the status quo.
, The question which we have to determine is whether directions in the nature of interim relief only could be granted under article 226, when the Court expressly stated that it refrained from determining the rights of the parties on which a writ 35 of mandamus or directions of a like nature could be issued.
In our opinion, article 226 cannot be used for the purpose of giving interim relief as the only and final relief on the application as the High Court has purported to do.
The directions have been given here only to circumvent the provisions of section 80 of the Civil Procedure Code, and in our opinion that is not within the scope of article 226.
An interim relief can be granted only in aid of and as ancil lary to the main relief which may be available to the party on final determination of his rights in a suit or proceed ing.
If the Court was of opinion that there ' was no other convenient or adequate remedy open to the petitioners, it might have proceeded to investigate the case on its merits and come to a decision as to whether the petitioners suc ceeded in establishing that there was an infringement of any of their legal rights which entitled them to a writ of mandamus or any other directions of a like nature; and pending such determination it might have made a suitable interim order for maintaining the status quo ante.
But when the Court declined to decide on the rights of the parties and expressly held that they should be investigated more properly in a civil suit, it could not, for the purpose of facilitating the institution of such suit, issue directions in the nature of temporary injunctions, under article 226 of the Constitution.
In our opinion, the language of article 226 does not permit such an action.
On that short ground the judgment of the Orissa High Court under appeal cannot be upheld.
Appeals allowed.
Agent for the appellant in all the appeals: P.A. Mehta.
Agent for the respondent in Case No. 300 : S.P. Varma.
Agent for the respondent in Cases Nos. 301 and 304: Ganpat Rai.
Agent for the respondent in Cases Nos. 302 and 303: P.K. Chatterjee.

dataset_name: IN-Abs

summary:
The High Court cannot make a direction under article 226 of the Constitution for the purpose of granting interim relief only pending the institution of a suit merely because the suit could not be instituted until after the expiry of 60 days from the date of a notice under Sec. 80 of the Civil Procedure Code and in the meanwhile, unless protected by the Court the applicant may suffer irreparable loss.
Even though writs can be issued under article 226 for purposes other than the enforcement of fundamental rights, the concluding words of the article have to be read in the context of what precedes the same, and the existence of a right is the foundation of the exercise of jurisdiction of the Court under this article.
An interim relief can be granted only in aid of, and as ancillary to, the main relief which may be available to the party on final determination of his rights in a suit or proceeding.