1. These are seven applns. for writs of mandamus and prohibition under Article 226, Const. Ind. The appcts. are: (1) Messrs Baghat Transport Service Ltd., Solan, through Sardar Dalip Singh, its director, (2) Sm. Durga Devi of Kalka, (3) Pandit Hstri Ram Sharma of Premier Motor Service, Kalka, (4) Messrs Bhan Singh Hari Singh, through Bhan Singh of Solan, (6) Prabh Dyal of Kalka, (6) Siri Ram of Kalka & (7) Rajinder Kumar of Kalka. They run passenger service on the Simla Hill Road within the territory of the State of Himachal Pradesh, holdirig contract carriage permits, for various vehicles, granted to them, under the Motor Vehicles Act, 1939, by the Provincial Transport Authority of the said State. The first appct. holds permits for two vehicles & the third for three, & the rest of them hold permits for one vehicle each. All the seven appcts. were originally granted permits for their respective vehicles on 1-4-1949 for a period of one year. Those permits were later on renewed twice, the first time for the three months which ended on 80-6-1950 & again for the next three months which ended on 30-9-1950.

2. While renewing permits for the quarter ending on 30-9-1950, the Secretary of the Provincial Transport Authority informed the appcts. that temporary route permits for that quarter were being issued to them as a very special case, & extensions of those permits will not be granted under any circumstances. The first appct. has filed a copy of the letter, dated 30-6-1960, which is Ex. 1 on the record. The following correspondence then ensued between that appct. & the Provincial Transport Authority. The other appcts. do not appear to have had any art. or part in this correspondence except for the last letter Ex. 9, dated 19-9-1950, which was addressed to the Chief Comer, of Himachal Pradesh as Controller of the Provincial Transport by Shri H.R Sodhi, Advocate, on behalf of all the seven appcts.

3. The first letter sent by the first appct. after receipt of the aforesaid information as to refusal to grant further extensions of permits was Ex. 2, dated 4-7-1950. It was addressed to the Secretary of the Provincial Transport Authority on behalf of the appct. by Sardar Sahib Shri Pratap Singh Advocate. It was alleged in this letter that the original permits granted to the appct. for his two vehicles should have been for the miuimum period of three years under Section 58 of the Motor Vehicles Act, & that the order limiting the period to only one year ending 31-3-1950 was without jurisdiction, & the adderssee was requested to rectify the mistake. The Secretary replied to the appct's counsel by the letter Ex. 3 which runs as follows:

“The permits in question were granted within two years of the commencement of the Motor Vehicles Act in Himachal Pradesh, under the proviso to S. 58, & thus the order limiting the period of validity of the permits for one year is in order.”

4. Two other letters were sent by the aforesaid learned advocate on behalf of the appot to the Secretary on 4-7-1950, being Exs. 4 & 5. The former purports to have been written in reply to the aforesaid letter Ex. 1 dated 30-6-1950 from the Secretary of the P.T Authority. It was mentioned in this letter that the appct. had been under the impression that his original appln, for renewal of route permits had been issued only to cover the intervening period during which his appln. was under consideration, but that it appeared from the aforesaid letter (Ex. 1) that the said appln. for renewal had been rejected ex parte without notice to the appct. It was prayed that a certified copy of the order rejecting the appln. be supplied to the appct. to enable him to file an appeal against that order. The other letter Ex. 5 is an appln. for copy of the order. To these letters the appct's counsel received a reply dated 24-7-1950 from the Secretary P.T Authority, which is Ex. 6 on the record, & which runs as follows:

“With reference to your letter dated 4-7-1950, I write to inform you that this Authority have not cancelled the route permits for taxi cabs Nos. Him-25 & 26 granted to Baghat Transport Service Ltd., for one year under Section 58(1) of the Motor Vehicles Act, 1939, bat have decided not to renew them.”

5. On receipt of the above reply the appct's counsel again wrote to the Secretary, P.T Authority (Ex. 7) on 25-7-1950 for a certified copy of the order by which the Transport Authority had decided not to renew the permits. The Secretary, Provincial Transport Authority did not send the appct. copy of any such order but he sent to his counsel the letter Ex. 8 dated 4-8-1950 to the following effect:

“With reference to your letter dated 25-7-1950, I am directed to inform you that in view of the fact that the Government of India had nationalised transport in Himachal Pradesh, this Authority decided not to renew the temporary permits issued to the Baghat Transport Co. for their cabs Nos. Him-25 & Him-26.”

6. On receipt of this letter the last communication Ex. 9, dated 19-9-1950, referred to above was sent to the Chief Comr. & P.T Controller of Himachal Pradesh on behalf of all the seven appcts. It is a long letter which contains arguments in extenso showing the illegality of the decision of the Provincial Transport Authority in refusing to renew the permits of the appcts., after 30-9-1950 in derogation of the fundamental right of the appots., to carry on their transport business subject to reasonable restrictions. It prays that at least the applns., for renewal be considered according to the procedure as laid down in the Motor Vehicles Act. It further prays that in order to save the expenses and inconvenience of litigation to both the parties the addressee, as the head of the Himachal Pradesh, and also of the Provincial Transport Authority, should set aside the illegal order in question and grant an interview to the writer of the letter to enable him to place before him relevant portions of a recent F.B judgment of the H.C at Allahabad. It is in the affidavit of the first appct. that on 22-9-1950 he sought an interview with the Chief Comr. but without avail. In the counter-affidavit filed by Shri Mahabir Singh, Assistant Secretary (Home & Revenue) to the Chief Comr., Himachal Pradesh State, it was stated that it was no use the appct. seeing the Chief Comr. & talking to him verbally when the counsel of the appcts. had already intimated that he would file an appeal against the order of the Provincial Transport Authority. On 25-9-1950 the present applns. under Article 226, Const. Ind., were filed in this Ct.

7. Each of the seven applns. is supported by an affidavit the contents of all of which are, with slight variations, identical. The learned Govt. Advocate has filed a single reply to all the applns. supported by a single affidavit of Shri Suraj Singh, General Manager, Himachal Govt. Transport & Secretary Provincial Transport Authority, Himachal Pradesh State.

8. The allegations in the applns. are that the first permit for one year granted to the appcts. was a regular permit under Section 58 of the Motor Vehicles Act, 1939, & should as such have been granted for the minimum period of three years under that section; that the two subsequent renewals were illegal as they were made for three months each in contravention of the provisions of the said section; that the applns. for the two renewals have not been disposed of according to the procedure laid down in the Act & will, therefore, be deemed to be still pending; that the Provincial Transport Authority has illegally & mala fide refused to renew the permits on the ground of nationalisation of road transport, which is a reason extraneous to the intention of the Act; that there is no other remedy available to the ptnrs. & that they have, therefore, filed these ptns. for the protection of their fundamental right to carry on, subject to reasonable restrictions, the transport business for which they hold valid permits. On the basis of these allegations they pray that the Govt. of the State of Himachal Pradesh be directed through the Chairman & Secretary of the Provincial Transport Authority by writs of mandamus to consider their applns. for renewal of permits according to the provisions of the Motor Vehicles Act, 1939, & that they be directed by writs of prohibition not to stop the passenger service that was being run by the ptnrs. for at least three years from 1-4-1950 (the date of renewal), or at least from 1-4-1949 (the date of original issue), as required by S. 58 of the Act. There was also a prayer for an interlocutory mandamus directing the said authorities to allow the transport service of the ptnrs. to continue until the disposal of the ptns. by this Ct. This interlocutory mandamus was granted to the ptnrs. & has been in force during the pendency of the ptns.

9. In the cause shown by the Govt. Advocate on behalf of the opposite party it was pleaded that the original permits granted to the ptnrs. were merely temporary permits, & that, therefore, they were validly renewed for three months each twice thereafter & need not further be renewed, nor need any reason be given for the refusal to renew them. Three other reasons given for the ptnrs. not being entitled to renewal of permits were that the permits granted to them represented in reality the quota & share of the Himachal Pradesh State which it had obtained under an arrangement with the Punjab & Pepsu States, that the refusal was in the larger interest of the State of Himachal Pradesh & of the public at large as distinguished from the private interests of the ptnrs. & that the Govt. wanted to nationalise transport service. It was explained that this nationalisation was necessary in order to make the small & new State of Himachal Pradesh self-supporting. It was further pleaded that the applns. of the ptnrs. were to all intents & purposes disposed of in March 1950 by the grant of temporary permits. It was denied that the ptnrs, had any such fundamental right as was claimed by them. In the counter-affidavit of Shri Mahabir Singh it was stated that one of the pfnrs. Prabh Dyal, had filed an appln. on 26-9-1950 in the Secretariat of the Himachal Pradesh Govt. informing the Provincial Transport Authority that he had sold off his our No. Him-34. There were some other pleas taken by the opposite party, & the following are in all the points that arise for determination in the present cases: (1) Whether the original permits for one year granted to the ptnrs. were regular permits under S. 58, or only temporary permits under Section 62 of the Motor Vehioles Act? (2) Whether each of the two subsequent renewals of the original permits (a) was illegal because made for three months only, or (b) did not amount to valid disposal of applns. for renewals according to the procedure prescribed by the Act? (3) Whether the Provincial Transport Authority was justified in refusing to renew the ptnrs.' permits on the ground of (a) nationalisation of transport service, or (b) the permits granted to ptnrs. being really the quota of the Himachal Pradesh Govt. under an arrangement between it & the Punjab & Pepsu Govts., or (c) refusal being in the larger interests of the State of Himachal Pradesh or of the public at large as distinguished from the private interests of the ptnrs.? (4) Whether the ptnrs. have the fundamental right of carrying on transport business within this State & that right has been infringed? (6) Whether the petns are barred by acquiescence?. (6) Whether petnrs. have been guilty of delay or laches such as to disentitle them to the reliefs claimed?. (7) Whether the petns do not lie because other remedies were open to the petnrb?. (8) Whether the petnrs. have had no cause of action because the performance of the duty now prayed for was not demanded or refused?. (9) Whether the petns are defective in form or wanting in necessary particulars?. (10) Whether Prabh Dyal has sold off his carriage?.

10. The learned Govt. Advocate took up points 6 to 9 as preliminary objections against the maintainability of the petns. These objections must need be disposed of first.

11. As regards the sixth point, it was argued by the learned Govt. Advocate that the petnrs. were guilty of laches in filing the petns only on 25-9-1950 although cause of action had accrued to them on 81-3-1950 when, on the expiry of the original permits for one year, renewals were granted for only three months. Whether the original permits, which were granted for one year on 1-4-1949, were regular permits under S. 58, or merely temporary permits under Section 62 of the Motor Vehicles Act, need not be considered at the present stage. The aforesaid plea as regards laches has been, & could only be, taken on the supposition that the original permits were regular permits. If it be held that the original permits were temporary permits, the entire case of the petnrs. would fall to the ground because, in that event, the Transport Authority may at its discretion, & without following the procedure laid down in the Act, grant permits for any period nofr exceeding four months, as laid in S. 62. That is, however, a question which will be dealt with when considering the first point. On the supposition that original permits were regular permits, there is a procedure laid down in the Act for the disposal of applns. for renewal of such permits, & in case of such an appln. being refused, it is incumbent on the Transport Authority, under sub-s. (7) of S. 57, to give to the appct. in writing its reasons for the refusal. This procedure, as I shall show presently while dealing with the second point, was not followed in the present case. What is more, no regular order refusing the applns. of the petnrs. for renewal of their permits appears to have been passed for, despite applicant 1 having twice asked for a copy of the order, first by his letters. Exs. 4 & 5 dated 4-7-1950, and again by his letter Ex. 7 dated 25-7-1950, the opposite party supplied him with no such copy. He was only informed by the letter Ex. 8 dated 4-8-1950 that the Transport Authority had decided not to renew the permits because the Govt. of India had nationalised transport in Himachal Pradesh. In the cireumstance, it could not fairly be contended on behalf of the opposite party that cause of auction had accrued to the petnrs, on the first renewals soon after 31-3-1950. The petnrs. in the absence of disposal of their applns. for renewal according to the procedure prescribed by the Motor Vehicles Act, must naturally have thought that the applns. were pending disposal, & that meanwhile short renewals for three months each had been granted to them. It was only on 4-8-1950 that they came to know far the first time that their permits would no longer be renewed because of the nationalisation scheme of the Govt. of India. On receipt of that letter the petnrs. preferred the appln. Ex. 9 dated 19-9-1950 pressing that their applns. for renewal be considered according to the law, & on there being no response to that appln, they filed the present petns for writs of mandamus & prohibition on 26-9-1950. They had obviously to file the present petns on 25-9-1950 because the period of their second extension was about to expire on 30-9-1950. In these circumstances, the contention that the petnrs. were guilty of delay or laches in the filling of the present petns is quite untenable.

12. There are three allegations in the reply of the opposite party in connection with the plea giving rise to the seventh point: (1) the petnrs. should have gone up in appeal under Section 64 of the Motor Vehicles Act, (2) they should have filed a suit in respect of which a notice had already been served by them on the opposite party or (3) they should have asked the Govt. for compensation. The third ground is futile since the petnrs. could not adequately be compensated in money for the loss they would suffer by stoppage of their service. As regards a suit, Section 45 of the Specific Relief Act, is not in force in this state & therefore applns. for writs of mandamus were the only reliefs open to them. There is no doubt that the relief of appeal was open to the peters, under S. 61(e) of the Act, but, as adverted to above, no order of refusal as required by (S. 57(7) was ever passed by the Provincial Transport Authority. No copy of such an order was given to applicant 1 despite his having twice applied for it, There was therefore no order against which the petnrs. could have gone up in appeal. As held by the Hon'ble the Chief Justice of the Allahabad H.C in the F.B case Motilal v. Uttar Pradesh Government, A.I.R (38) 1951 All. 257:

“For an appeal under S. 64 there muse be an order of a Provincial or Regional Transport Authority passed under the Act. As I have already said, the Regional Transport Authority or its Secretary, or the Regional Transport Officer, who seems to have been acting for the Authority, do not appear to have passed any order under the Motor Vehicles Act & therefore, no question of an appeal under S. 64 seems to arise.”

13. I, therefore, hold that the contention that the ptns., did, not lie because other remedies were pen to the ptnrs. has no force.

14. Coming to the eighth point, there is no doubt that a demand for performance of a legal duty & its refusal is ordinarily a condition precedent to the maintainability of a ptn. for a writ of mandamus. Dicey says in his Law of the Constitution, ninth Edn., at p. 526:

“Mandamus is an order issued by the King's Bench Division to compel the performance of a public duty. The order, which is, like the other prerogative orders the writ of habeas corpus, granted at the discretion of the Ct. will only be granted where the appct. has a right to the performance of a legal duty & has no other equally appropriate & convenient means of enforcing its performance, which he must have demanded & been refused.”

15. In Halsbury's Laws of England, Hiilsham Edn vol. IX, at p. 771, it is laid down as follows:

“As a general rule the writ will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, & it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, & that such demand was met by a refusal.”

16. The main relief pressed before me on behalf of the ptnrs. is the one for a writ of mandamus directing the opposite party, to consider the applns. for renewal of permits according to the provisions of the Motor Vehicles Act. This relief, as adverted to above, was specifically asked for by all the ptnrs. by means of the aforesaid letter Ex. 9 dated 19-9-1950 addressed to the Chief Comr. & Provincial Transport Controller of Himachal Pradesh. It may be mentioned here in passing that the Chief Comr is also the Chairman of the Provincial Transport Authority in Himachal Pradesh. It cannot, therefore, be said that no demand for performance of the legal duty in question had been made by the ptnrs. before the filing of the present ptns. It was, however, contended by the learned Govt. Advocate that there has been no refusal because, before the Chief Comr or the Transport Authority could reply to the aforesaid letter of the ptnrs. dated 19-9-1950, the pre sent ptns. had been filed. The argument is that the opposite party did not have sufficient time to take action on the said letter of the ptnrs. In the F.B case of the Allahabad H.C the Advocate-General gave an undertaking to the Ct. even in respect of the ptnrs. who had not applied for regular permits before the institution of the applns. for mandamus, that if they were to make the necessary applns. in future they would be considered according to the law. Even upto 31-10-1950, which was the last date for arguments in this case on the preliminary objections, there was no such undertaking forthcoming on behalf of the opposite party, & that in spite of the fact that the aforesaid demand for performance of fluty had been made six days before the institution of the present ptns. As already remarked, the ptnrs. could not have waited longer for Sling these ptns., because their permits were going to expire on 30-9-1950, & the Transport Authority had written to them definitely that no renewals or extensions would in future be made. In the circumstances, it cannot validly be argued on behalf of the opposite party that had it been given more than the six days which elapsed between the date of the ptnrs.' letter Ex. 9 dated 19-9-1950 & the institution of the present applns. on 25-9-1950 it would not have refused the demand but would have considered it according to the provisions of the Motor Vehicles Act.

17. The learned Govt. Advoaate strongly relied upon two rulings: Hareniranath v. State of Madhya Bharat, A.I.R (37) 1950 M.B 46, & Municipal Corporation, Bombay v. Govind Laxman, A.I.R (36) 1949 Bom 229 : (51 Bom. L.R 190). In the former case admittedly no demand had been made, which is not the case there. In the latter case the demand by means of letters had been addressed to the Municipal Comr just three days before the filing of the leaving insufficient time for the Corporation to consider the requisition made by the ptnr. The present cases are different from the Bombay case an two ways: firstly, the demand was made six days before the filing of the ptns. & secondly, to wait for the opposite party's refusal and postpone the filing of the ptns. for a longer period would in the present case have been to run the risk of the ptnrs' service being totally stopped. There was no such risk involved in the Bombay case, & as adverted to above, there was no undue delay in the filing of the present ptns. Anather distinguishing feature is the conduct of the Transport Authority in the present case. In the letter dated 30-6-1950 (Ex. 1) it was specifically stated by the Secretary of the Provincial Transport Authority that extensions of permits will not be granted under any circumstances. Again, he stated in his letter dated 24-7-1950 (Ex. 6) & thereafter in his letter dated 4-8-1950 (Ex. 8) that the Transport Authority had decided not to renew the permits. The inference from this conduct of the Provincial Transport Authority is irresistible that they were not prepared to entertain or allow any applns. for performance of the duty now sought to be enforced by the ptnrs. In the aforesaid Allahabad case also the ptnrs. had received a letter from the Secretary of the Regional Transport Authority definitely stating that no further applns. for the renewal of stage carriage permits should be entertained. A notice was also issued to the ptnrs. to stop plying buses from a certain date. Commenting upon this conduct of the Transport Authority Agarwala, J. remarked as follows:

“In these circumstances the appcts, were justified in coming to the conclusions that there was no use making the applns. for the grant of non-temporary permits & that if one were made it will be refused. It could be inferred from the conduct of the Regional Transport Authority that they were not prepared to entertain on allow any such applns. if made my opinion this conduct of the Regional Transport Authorities furnishes a sufficient ground for the appcts. to seek redress from this Ct.”

18. To the same effect is Halsbury, Vol. IX, p. 771:

“Although a mere withholding of compliance with the demand is not sufficient ground for a mandamus, yet it is not necessary that there should have been a refusal in as many words. All that is necessary in order that a mandamus may issue is to satisfy the Ct. that the party complained of has distinctly determined not to do what is demanded.”

19. Regard being had to the aforesaid conduct of the opposite party, it is manifest that although there was no refusal in so many words, the opposite party had distinctly determined not to do what was demanded. I, therefore, hold that there was a demand & a virtual refusal before the institution of the present ptns.

20. The ninth point relates to certain faults of phrase & form found by the learned Govt. Advocate in the present ptns. It was argued, in the first place, that the ptns. have been directed against the State Govt. which under clause (59) of Section 3 of the General Clauses Act, as amended by the Adaptation of Laws Order, 1950, mean a in a part State like the present the Central Govt., that the Central Govt. under cl. (3) of the same section means the President, & that therefore the ptns., have been addressed to the President of India, who has nothing to do with them. The fact of the matter, however, is that the ptns., have not been addressed to the State Govt. but to the State of Himachal Pradesh through the Chairman, Provincial Transport Authority, Himachal Pradesh. That has apparently been so done because the Chief Comr of this State is also the Chairman of the Provincial Transport Authority. Strictly speaking, the ptns. should have been addressed to the Provincial Transport Authority through either its Secretary or its Chairman, & not to the State of Himachal Pradesh, since the permits in the past have been issued by that Authority & it is to that Authority that writs of mandamus will have to be issued, if they are issued at all, to dispose of the ptnr's applns. for renewal according to the procedure laid down in the Motor Vehicles Act. Since, however, the Chairman of the Provincial Transport Authority, Himachal Pradesh, is mentioned in the ptns. as the opposite party, it is immaterial that the State of Himachal Pradesh is also mentioned in addition.

21. It was then argued that the ptns. do not make it dear as to what applns. the ptnrs. seek to be disposed of according to law. As adverted to above, the applns. in question, as the ptnrs, themselves show, are the two applns. for renewal of permits, the one filed before 31-3-1960 & the other before 80-6-1950.

22. My attention was next drawn by the learned Govt. Advocate in this connection to the fifth para of the affidavit filed by him where it is alleged that the applns. of the ptnrs. were not in accordance with law, & that they were neither on the prescribed form nor contained the necessary particulars. Except that the applns. were not on the prescribed form, the other allegations are vague, for it is not stated how the applns. were not in accordance with law or what were the particulars which they did not contain. As to the form, the various forms are contained in the fifth Schedule of the Punjab Motor Vehicles Rules, 1940, which, subject to certain modifications have been adopted by the Himachal Pradesh Government by their Notfn. No. 5-J-1-57/49, dated 20-1-1949, and a copy of which, marked Ex. A.5, is on the record of the first ptnr's case. Rule 4.8 lays down that every appln. for a permit in respect of an appln. for renewal of a transport vehicle shall be in one of the form a mentioned therein. There is, however, no rule or form in respect of an appln. for renewal of a permit. The formal objections relating to the applns. for renewal of permits contained in the fifth para of the opposite party's affidavit have, therefore, no substance. Moreover, this is hardly the stage for taking these objections. They should have been taken when the appls. for renewal were made. No such objections were, however, then taken, & the appls. for renewal were acted upon & renewals made. Whether those renewals were not in accordance with the law is another matter. But, as has been just stated, there is no substance in the objection relating to the form of the applns. for renewal of permits, & subject to other points also being decided in favour of the petnrs. the opposite party is bound to consider these applns. in accordance with the law as contained in the Motor Vehicles Act.

23. This disposes of all the preliminary objections arising from the affidavits of the parties. There is, however, one other objection, which was taken by a subsequent appln., & which was passed by the learned Govt. Advocate with great force. This objection was that this of has no jurisdiction to issue the writs to the Provincial Transport Authority, Himachal Pradesh. After this new State of Himachal Pradesh came into being on 15-4-1948, by the integration of 21 Punjab Hill States & their 9 tributaries there arose the question of location of its cts. & authorities? For certain reasons, which it is not necessary here to mention, neither the Himachal Pradesh Government nor this Ct. was located within the Himachal Pradesh territory but in Simla, which is within the territorial limits of the Punjab State. This Ct. is located in a building known as the Harvington, & the Himachal Pradesh Government, containing the office of the Chief Comr. & offices subordinate to him, including the office of the Provincial Transport Authority, in a building known as the Himachal Dham. The argument of the learned Govt. Advocate was that since the act the performance of which the writs of mandamus issued by the Ct. will enjoin on the Himachal Pradesh Provincial Transport Authority, namely, the disposal of the petnrs' applns. for renewal according to the-law, will have to be performed by that Authority in its office in the Himachal Dham, which is outside the local jurisdiction of this Ct., this Ct. is not empowered to issue the writs. The case law on this point, as cited by the learned Govt. Advocate, is no doubt in favour of this argument: Inspector of Municipal Councils and Local Boards v. Venkatanarasimham, A.I.R (21) 1934 Mad. 140 : (147 I.C 1052), P.K Banerjee v. L.J Simonds, A.I.R (34) 1947 Cal. 307; Shree Meenakshi Mills Ltd. v. Provincial Textile Comr. Madras, A.I.R (36) 1949 P.C 307 : (76 I.A 191). According to these rulings the jurisdiction of the H.C to pass an order under Section 45 of the Specific Relief Act, 1877, corresponding to a writ of mandamus issued under S. 226, Const. Ind is confined to acts to be done or forborne within its territorial limits, irrespective of whether the person against whom the order is passed resides or carries on business within or without those limits.

24. The situation created is no doubt stranger the objection is raised by the very Govt. which was responsible for the present location of its-offices & of this Ct. It appears, however, that the anomaly was realised by the Central Govt. which passed the following two Orders published in the Gazette of India, Part I, S. 1, dated 22-1-1949.

“No. 8-IB.-WHEREAS some of the Courts and authorities of Himachal Pradesh are located in Simla which is situated within the territorial limits of the frovince of East Punjab;

AND WHEREAS doubts have arisen regarding the validity of orders passed and acts done by the said; Courts and authorities in exercise of their jurisdiction in respect of Himachal Pradesh while sitting at Simla;

AND WHEREAS it is expedient that due provision should be made for the removal of the doubts and for validating the aforesaid orders and acts;

NOW, THEREFORE, in exercise of the powers' conferred by clause (c) of sub-section (2) of Section 4 of the Extra-Provincial Jurisdiction Act, 1947 (XLVII [47] of 1947) and of all other powers enabling it in this behalf the Central Government is pleased to make the following order:

1. Short title, extent and commencement. (1) This Order may be called the Himachal Pradesh (Legal Proceedings and Executive Authority) Validating Order, 1949.

(2) It extends to the whole of the Himachal Pradesh.

(3) It shall come into force at once.

2 Notwithstanding anything to the contrary contained in any law for the time being in force, all orders made, proceedings taken, sentences passed and acts done in respect of Himachal Pradesh by the Courts and authorities, located in Simla. In exercise of the powers and jurisdiction vested in them by law applicable to Himachal Pradesh or which purported to be made, taken, passed or done in exercise of the powers and jurisdiction derived or purporting to be derived from the provisions of any law for the time being in force in Himachal Pradesh, shall be deemed to be, and always to have been, validly made, taken, passed or done.

No. 9-IB. — WHEREAS some of the Courts and authorities of Himachal Pradesh are located in Simla which is situated within the territorial limits of the Province of East Punjab;

AND WHEREAS it is expedient that the said Courts and authorities be invested with jurisdiction to pass orders and do other acts in respect of Himachal Pradesh while sitting at Simla.

NOW, THE BEFORE, in exercise of the powers conferred by clause (c) of sub-section (2) of Section 4 of the Extra-Provincial Jurisdiction Act, 1947 (XLVII [47] of 1947) and of all other powers enabling it in this behalf, the Central Government is pleased to make the following order:—

1. Short title, extent and commencement,—(1) This order may be called the Himachal Pradesh (Legal Proceedings and Executive Authority) Order, 1949.

(2) It shall extend to the whole of Himachal Pradesh.

(3) It shall come into force at once.

2. The Himachal Pradesh Courts and authorities located in Simla shall, notwithstanding anything to the contrary contained in any law for the time being in force, be competent while sitting at Simla, to make orders, take proceedings, pass sentences and do all other acts in exercise of the powers and jurisdiction vested in them by any law at present applicable, or which hereafter may be made applicable to Himachal Pradesh.”

25. It is clear that these Orders were made by the Central Govt. to remedy the aforesaid anomalous situation that had been created by the location of the Ct. & authorities of the State of Himachal Pradesh in Simla outside the territorial limits of the State. The first Order validated orders already passed & acts already done by the Cts. & authorities of Himachal Pradesh, & the second invested them with jurisdiction to do so in future. Both the orders were made ‘notwithstanding anything to the contrary contained in any law for the time being in force, which means any law for the time being in force’, which means any law, like the aforesaid rulings cited by the learned Govt. Advocate, or Section 20 of the CPC, or any other law relating to jurisdiction. If then the Himachal Pradesh (Legal Proceedings & Executive Authority) Order, 1949, be applicable to the facts of these cases, this Court will have the jurisdiction to issue the writs to the Provincial Transport Authority Himachal Pradesh, the aforesaid law notwithstanding. It may be stated there in passing that these orders were not brought to my notice by the learned Govt. Advocate, as they should have been but by the office, in the course of arguments, & that when they were so brought to my notice he offered no comment in respect of them. It is nonetheless necessary for me to see whether, on a correct interpretation of the Order, this Ct. has the jurisdiction to issue the writs to the Provincial Transport Authority Himachal Pradesh.

26. Briefly put, the Order lays down: Notwithstanding any law to the contrary, the Himachal Pradesh Cts. & authorities shall be competent to pass orders & do other acts despite their being located outside their territorial limits, provided the orders & acts aforesaid be in respect of Himachal Pradesh & in exerciss of powers & jurisdiction vested in them by law. The two qualifications laid down in the proviso are easily satisfied. The writs prayed for are in respect of Himachal Pradesh since they relate to renewal of permits for the running of passenger service on the Simla hill road within the territory of that State, & they will be issued in exercise of the powers & jurisdiction vested in this Ct. by law since they will be issued under Article 226, Const. Ind. The use & juxtaposition of the phrase ‘while sitting at Simla’ twice in the Order, once in the preamble & again in the second clause of the Order might at first sight suggest that the only contingencies provided for were the sitting at Simla of the Ct. which passed the order or of he authority which did the act, & that the two were mutually exclusive. In other words, taking the case of the Ct. alone, it might seem that jurisdiction had only been conferred on a Ct. of Himachal Pradesh to pass an order while sitting at Simla, but not an order requiring an authority of Himachal Pradesh to do a certain act.

27. Now, it is well established that the dominant purpose in construing a statute is to ascertain the intent of the L gislature, per Lord Wrenbury in Viscountess Rhondda's Claim, (1922) 2 A.C 339 : (128 L.T 165). And this intent or purpose or reason why a particular statute has been passed is to be found in its preamble if any. Halsbury, vol. 31, p. 461. Fortunately there is a preamble to the Order under consideration. It is contained in the first two paras, of the Order, as cited above.

28. It is clear from this preamble that the purpose of passing the Order was to provide for the contingencies that might arise due to both the Cts. & authorities being located in Simla, which must necessarily mean all, & not only some, of the contingencies. As laid down in Attorney-General v. Powis, (1853) 1 Kay 186 at p. 207 : (2 W.R 140), in construing a statute regard may he had to the exact satete of the law, & generally to all circumstances which can be proved by extrinsic evidence to have surrounded Parliament at the time it was passed. Further, as held in Beaden v. King, (1852) 9 Hare 499 Iat p. 522, ignorance of the circumstances which rendered the passing of a statute necessary cannot be imputed to Parliament it must be presumed, therefore, that the Central Govt. knew, when passing the Order that one of the contingencies that might due to the location of the Himachal Pradeah Cts. & authorities in Simla was the issuing of an Order by the former for compliance by the latter And as it must futher be presumed that Parliament (whose place has here been taken by the Central Govt. in making the Order) knows the law, as held by Lord Denman, C.J in B v. Watford (Inhabitants), (1846) 9 Q.B 626 at p. 635 the Central Govt. must have known the law contained in the aforesaid rulings cited by the learned Govt. Advocate & therefore provided in the Order for the contingency just mentioned. Such an interpretation does not also do any violence to the language of any portion of the Order. On the contrary, it avoids the absurdity which the interpretation set forth in the beginning will lead to, & this follows the well-known principle of construction of statutes, ut res magis valeat quam pereat, as laid down by Bowen L.J, in Curtis v. Stovin, (1839) 22 Q.B.D 513 at p. 617 : 58 L.J.Q.B 174). The correct interpretation to be put on the Order, therefore, is that it covers all contingencies rising out of the location of the Himachal radesh Cts. & authorities in Simla. & that therefore the power with which it invested those Cts. to pass orders included the power to pass an order requiring those authorities to do a certain act.

29. The points other than those relating to the preliminary objections may now be taken up, & the first of these is whether the original permits for one year granted to the petnrs. were regular permits under S. 58, as urged on behalf of the petnrs., or only temporary permits under Section 62 of the Motor Vehicles Act, as contended on behalf of the opposite party. As pointed out at an earlier stage of this judgment, if it be held that the original permits were temporary permits, the entire case of the petnrs. would fall to the ground because, in that event, the Transport Authority may at its discretion, and without following the procedure laid down in the Act, a procedure laid down only in respect of the regular & not of temporary permits, grant permits for any period not exceeding four months, as laid down in S. 62.

30. The provision relating to the grant of temporary permits is contained in S. 62, & it is to the following effect:

62 Temporary permits. — A Regional Transport Authority may at its discretion, and without following the procedure laid down in S. 57, grant permits, to be effective for a limited period not in any case to exceed four months, to authorise the use of a transport vehicle temporarily

(a) for the conveyance of passengers on special occasions such as to and from fairs and religious gatherings, Or

(b) for the purposes of a seasonal business, or

(c) to meet a particular temporary need and may attach to any such permit any condition it thinks fit.

31. Now, there are four reasons why the original permits were not temporary permits. Firstly, under the section a temporary permit is granted for a limited period not in any case to exceed four months, but these permits were granted for a year. Secondly, as unrebuttedly proved by the affidavits of the petnrs. these permits were granted in the forms A & B, which are the forms described as Form P.C.O.P under the mandatory provisions of R. 4.9 & given on pp. 164 to 169 of Sch. 5 to the aforesaid Punjab Motor Vehicles Rules, 1940. The temporary permit form is quite different & is given on p. 179 of the Sch. Thirdly, the permits were not granted for any of the purposes mentioned in cls. (a), (b) & (c) of S. 62. It is mentioned in the affidavit of Shri Suraj Singh, Secretary, Provincial Transport Authority, Himachal Pradesh State, that the permits were temporary permits issued for the season only when there is rush of passer to Simla from the plains. Now, this contention is on the face of it untenable since the season when there is a rush of passengers to Simla from the plains is the Bummer season, but the permits were granted for the whole year. Furthermore, if this contention were correct the opposite party would have filed the in proof of the contention, as it has been unrebuttedly proved by the petnrs. affidavits that the original petmits were taken back by the Transport Authority at the time of renewal. It is to be noted that one of the particulars required to be shown in a temporary permit form is the purpose for which the vehicle is permitted to be used. It is a matter of some regret that totally unfounded pleas like the present (& also the one about want of jurisdiction in suppression of the Himachal Pradesh Legal Proceedings & Executive Authority Order, 1949), characteristic of litigants of a certain kind, should have been taken by a responsible public body like the Himachal Pradesh Provincial Transport Authority, & that in the teeth of its own admissions. And this brings me to the fourth & the last of the grounds referred to above. These admissions are contained in the two letters of the Secretary of the Provincial Transport Authority, Exs. 3 & 6, which have been set forth at the beginning of this judgment. In both these letters it was clearly admitted that the permits had been issued under S. 58 of the Act. In the first of these letters the legal position was quite correctly stated namely, that the permits had been validly granted for only one year under the proviso to that section since they had been issued within two years of the commencement of the Act. There can be no doubt, therefore, that the original permits granted for one year on 1-4-1949 were regular permits under S. 58 of the Act.

32. The next question that arises for deter, mination is whether each of the two renewals of these regular permits was illegal as did not amount to a valid disposal of the petnrs.’ applns. for renewal. Each of these two renewals was made for a period of 3 months, the first one for the quarter ending on 30-6-1950 & the second for that ending on 30-9-1950. Section 58 lays down as follows:

68. Duration and renewal of permits.—

(1) A permit other than a temporary permit issued Under S. 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 in its discretion specify in the permit:

Provided that in the case of a permit issued or renewed within two years of the commencement of this Act, the permit shall be effective without renewal for such period of less than three years as the Provincial Government may prescribe.

(2) A permit may be renewed on an application made and disposed of as if it were an application for a permit:

Provided that, other conditions being equal, an application for renewal shall be given preference over new applications for permits.

33. Under the first proviso the period of less than three years for which a permit is issued or renewed within two years of the commencement of the Act has to be prescribed by the Provincial Transport Authority. ‘Prescribed,’ under S. 2(21) of the Act, means prescribed by rules made under this Act. Rule 4.24 of the Punjab Motor Vehicles Rules, 1980, which as has been stated before, have been adopted in this State, is the rule-which prescribes the duration of such permits, & it is to the following effect:

4. 24. Duration of permits. — A permit issued or renewed within two years of the commencement of the Act shall be effective without renewal for a period of one year or such other period not being less than one year as the Regional Transport Authority may specify:

Provided that permits for vehicles of the same class valid for the same route shall not be made effective for different periods.

34. Clearly, therefore, the renewals of the original permits should also have been for one year each, & as a renewal for any period of less than one year was by this rule mandatorily prohibited, the said renewals for three months each were illegal.

35. As regards disposal of applns. for renewal, there is a procedure laid down in the Act with reference to various types of vehicles defined in the Act. The procedure purports to be for grant of permits, but as cl. (2) of S. 58, cited above, will show, a permit may be renewed on an appln. made & disposed of as if it were an appln. for a permit. The relevant pro visions of the Act for the disposal of applns. for grant, or renewal, of a contract carriage permit are the following:

50. Procedure of Regional Transport Authority in considering application for contract carriage permit.—A Regional Transport Authority shall, in deciding whether to grant or refuse a contract carriage permit, have regard to the extent to which additional contract carriages may be necessary or desirable in the public interest; and shall also take into consideration any representations which may then be made or which may previously hive been made by persons already holding contract carriage permits in the region or by any local authority or police authority in the region to the effect that the number of contract carriages for which permits have already been granted is sufficient for or in excess of the needs of the region or any are a within the region.

51. Power to restrict the number of contract carriages and impose conditions on contract carriage permits A Regional Transport Authority may, after consideration of the matters set forth in S. 50,

(a) limit the number of contract carriages generally or contract carriages of any specified type for which contract carriage permits may be granted in the region or any specified area within the region;

(b) fix in the case of motor cabs the fares which may be charged;

(c) require that every motor cab shall carry a copy of the fare table for inspection by passengers;

(d) require that any motor cab shall be fitted with a taxi meter, or

(e) impose on the use of a contract carriage any other condition which may be prescribed.

57. Procedure in applying for and granting permits.

(6) When any representation has been made by the persons or authorities referred to in S. 50 to the effect that the number of contract carriages for which permits have already been granted in any region or any area within a region is sufficient for or in excess of the needs of the region or of such area, whether such representation is made in connection with a particular application for the grant of a contract carriage permit or otherwise, the Regional Transport Authority may take any such steps as it considers appropriate for the hearing of the representation in the presence of any persona likely to be affected thereby.

(7) When a Regional Transport Authority refuses an application for a permit of any kind, it shall give to the applicant in writing its reasons for the refusal.

36. It will be observed that under S. 50 the Transport Authority will, when renewing the permit, consider, either suo motu or on a representation by a third party, the sufficiency or otherwise of the existing number of contract carriages in a region or area, regard being bad to the needs of that region or area in the public inter est; that after such a consideration the Authority can under S. 51 limit the number of contract carriages & impose certain conditions on the use of the carriage: & that under S. 57 when a representation regarding the number referred to in S. 50 is made the Authority will hear the fame in the presence of any persons likely to be affected thereby & when it refuses an appln. give to the appct. in writing its reasons for the refusal.

37. The use of the word “shall” shows that the provisions of S. 50 are mandatory. In sub-s. (6) of S. 57 the word used is “may,” but it is noteworthy that in the corresponding provision relating to stage carriage permits contained in sub-s. (5) of this very section the word used is “shall.” As there is no reason under the Act why contract carriage permits should be treated differently from stage carriage permits, the provision relating to the hearing of a representation against the grant of renewal of a contract carriage permit contained in sub-s. (6) must also be interpreted as mandatory. There is a further reason why the expression ‘may’ in Sub-s. (6) should be treated as mandatory. As laid down in Halsbury vol. 26, p. 284,

“Besides judicial persons & bodies strictly so called, there are many other persons & bodies who have authority or discretion to decide upon matters affecting other persons such as licensing justices.”

38. These have been described as persons or bodies exercising quasi judicial powers. In so far, therefore, as a Transport Authority has authority or discretion under the sections just cited to decide upon the matter of allowing or refusing applns. for the grant or renewal of permits, it is a quasi-judicial body. That was also the view expressed in Sri Rama Vilas Service Ltd. v. Road Traffic Board, Madras, A.I.R (35) 1948 Mad. 400 : (1948-1 M.L.J 85), and in the aforesaid F.B ruling of the Allahabad H.C Now, it has been held in R. v. Kensington Income tax Commissioners, (1913) 3 K.B 870 at p. 899 : (83 L.J.K.B 364), that powers conferring jurisdiction on a judicial body must be taken to have a compulsory force.

39. The petnrs. were entitled that their applns. for renewal of permits be disposed of by the Provincial Transport Authority in accordance with the above mandatory provisions, but these provisions were never observed & all of a sudden the Secretary Provincial Transport Authority wrote to the petnrs. on 30-6-1950, while renewing the permits for the next quarter, that temporary route permits for that quarter were being issued to them as a very special case & that extensions of these permits would not be granted under any circumstances. Thereafter, it was only on. 4-8-1950 that in response to repeated requests of the first petnr., the Seoretary P.T Authority disclosed for the first time that the decision not to renew the permits had been made because the Govt. of India had nationalised transport in Himachal Pradesh. At a late stage in these cases the learned Govt. Advocate filed the correspondence Exs. A6 to A8 that had taken place between the Himachal Pradesh Govt. & the Ministry of States, which shows that the former had made a proposal for the nationalisation of transport in Himachal Pradesh on 31-7-1948 which was sanctioned by the Govt. of India on 20-7-1949.

40. This move by the Himachal Pradesh Government'for nationalisation of transport as sanctioned by the Govt. of India might be regarded as the representation referred to in Ss. 50 & 57(6) in consequence whereof the Provincial Transport Authority decided not to renew the petnr's permits. It was, however/incumbent on the P.T Authority to have taken steps for the hearing of the representation in the presence of the persons likely to be affected thereby, i.e the petnrs. & some representative of the Himachal Pradesh-Government, before coming to any decision on the point. No such steps were, however, taken. The scheme of nationalisation was kept secret for over a year, & the decision not to renew the permits was taken behind the back of the petnrs. Furthermore, as a quasi-judicial body the Provincial Transport Authority should have directed itself to see that this representation was incompetent both as to the party making it & as to its object. It was incompetent as to the party making it inasmuch as the only persons entitled to make a representation under S. 50 are ‘persons already holding contract carriage permits in the region’, a ‘local authority’ & ‘police authority in the region’. The State Govt. does not fall under any of these categories, not even under that of ‘local authority’, as the definition of that term in Section 3(28) of the General Clauses Act, 1897, will show. There were only two ways in which the State Government could interfere: it could prohibit or restrict long distance goods traffic & fix fares & freights in any area under S. 43, & it could make rules under S. 68, there is no rule in the Punjab Motor Vehicles Rules, 1940 empowering the State Government to stop, through the instrumentality of the Provincial Transport Authority, passenger service run by permit holders. Indeed, no such rule could have validly been framed by the State Government for it would have been in contravention of its rule-making power under S. 68, which is confined to the making of ‘rules for the purpose of carrying into effect the provisions of this Chapter’ meaning Chap. IV relating to control of Transport Vehicles. The so-called representation was also incompetent as to its object inasmuch as the only ground on which it could have been made under Ss. 50 & 57(6) was, as already stated, the sufficiency or otherwise of the existing number of contract carriages in a region or area, regard being had to the needs of that region or are in the public interest. And on a consideration of this matter the Authority could under S. 51 limit the number of contract carriages & impose certain conditions on the use of a carriage. It is noteworthy in this connection that under the second proviso to S. 58, ‘other conditions being equal, an application for renewal shall be given preference over new applicants for permits.’ It is manifest, therefore, that refusal to renew existing permits on the representation of a new appct., even though that appct. happens to be the State Government, & that on the ground of nationalisation of transport, was ultra vires the powers of the Himachal Pradesh Transport Authority. Such an action did not also fall under S. 60 relating to cancellation & suspension of permits.

41. In the above cited 1948 Madras case & the F.B case of the Allahabad H.C also renewal of permits was not granted on the ground of nationalisation of transport. This ground was referred to as an extraneous matter in the former ruling, and in the latter it was observed as follows:

“The Motor Vehicles Act of 1939 was passed to consolidate and amend the law relating to motor vehicles in British India. It was an Act devised for the regulation and control of motor traffic, and made no provision for the creation of any monopoly in the transport of passengers of goods.”

and again:

“Now it is conceded by the opposite-parties that in deciding whether an appln. for a regular permit should be granted or not a Regional Transport Authority must have regard only to the matters to which reference is male in Sections 47, 48 of the Motor Vehicles Act, and that the fact that the State Government was proposing to run its own buses on the roads or that it proposed to pursue a policy of state monopoly in respect of the carriage of persons for reward on certain routes were considerations which were entirely irrelevant.”

42. There can be no doubt, therefore, that each of the two renewals for only three months was illegal, and that the petnrs. applns. for renewal were not disposed of according to the law. Furthermore, refusal of renewals on the ground of nationalisation of transport service was ultra vires the powers of the Himachal Pradesh Transport Authority. For the same reasons, considerations as to the permits granted to petnrs. being really the quota of the Himachal Pradesh Govt. under some inter. States arrangement, or as to refusal being in the larger interests of this State or of the public at large, are considerations of extraneous matters outside the scope of the Act.

43. I would take up here the plea of acquiescence. The learned Govt. Advocate confined his arguments in this connection to the cases of only three petnrs. Sm. Durga Devi, Pandit Hari Ram Sharma & Rajindar Kumar. He has filed letters Exs. A9 to All sent by these pafcnrs to the Secretary, Provincial Transport Authority, when the renewals for the quarter ending on 30-6-1950 were on the verge of expiry. By means of these letters these petnrs. asked for renewal of their permits for a further period of three months. It was, therefore, argued by the learned Govt. Advocate that these petnrs. were debarred by acquiescence or estoppel from questioning the action of the Provincial Transport Authority in making the renewals for only three months each. There are a number of reasons for the view that the rule of acquiescence or estoppel has no application in the case of any petnr., but it will be sufficient to mention only one, & that is that the opposite party cannot escape the performance of the aforesaid statutory duty cast upon it behind the plea of estoppel or acquiescence. This is based on the well-established rule that there can be no estoppel or acquiscence against the provisions of a statute. See the well-known) Barrow's case, (1890) 14 ch. D. 432 at p. 441 : (49 L.J Ch. 498). The rule is expressed in the following words by Lord Shaw of Dunfermline at p. 425 in Bradshaw v. Mc. Mullan, (1920) 2 L.R 412.

“I do not see my way to sanction the application of this specific plea of res judicata, or the more general plea of estoppel, to any transaction which is in plain definance of statutory injunction.”

44. The rule has been applied in a number of cases in our own country, e.g in the Madras Hindu Mutual Benefit Permanent Fund v. Ragava Chetti, 19 Mad. 200, Abdul Aziz v. Kanthu Mullick, 38 Cal. 512 : (18 I.C 467) and Venkateswara v. Ramanatha, A.I.R (16) 1929 Mad. 622 : (119 I.C 472).

45. The only other major point requiring consideration is whether the petnrs, have the fundamental right of carrying on transport business within this State and that right has been infringed. The question of infringement has already been considered. It has been seen that the Provincial Transport Authority has, instead of disposing of according to law the petnrs' applns. for renewal of their permits, illegally & arbitrarily refused to renew the permits. As regards the right of carrying on transport business, there can be no doubt that it falls in the category of the fundamental right mentioned in Article 19(1)(g). Const. Ind in considering the question whether the appots in that case had a general right to ply buses for hire on the public highway Mootham & Wanehoo, JJ. held as follows in the aforesaid F.B case of the Allahabad H.C:

“On general principles, therefore, we think the answer to the first question must be in that affirmative, and as far as India is conoerned we think that the view which we have expressed is confirmed by the provisions of Article 19(1)(g) of the Constitution. That clause provides that “All citizens shall have the right to practice any profession, or to carry on any occupation, trade or business.” If plying of buses on hire is a trade or business and there can be no doubt that it is a citizen has now the right to carry on such trade or business subject to such reasonable restrictions in the public interest as may be imposed by law under cl. (6) of that Article.”

46. The relevant portion of cl. (6) of the said Article runs as follows:

“Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause.”

47. It is dear, therefore, that there are two conditions precedent to the imposition of restrictions on the exercise of the fundamental right to practise any profession, or to carry on any occupation, trade or business, namely, firstly, that they are imposed by operation of any existing law or of any law made in future by the State, & secondly, that they are reasonable restrictions in the interests of the general public. The former condition pertains to the domain of the powers of the Legislature & the latter to that of the jurisdiction of Cts. It does not fall to be considered in this case whether it will not be open to Cts., when monopoly by nationalisation of motor transport industry is creafced by legislation, to question the legislation on the principle that an act authorised by Legislature cannot be wrongful, or whether it will be within the province of the Cts to do so because that jurisdiction appears to have been conferred on Cts by Article 19(6) itself. Suffice it for the present to say that there is no existing law imposing a restriction on the exercise of the fundamental right of carrying on the trade of plying buses on hire, by the creation of monopoly by nationalisation of motor transport industry. The fundamental right of the petnrs. to carry on transport business, within the four corners of the provisions of the Motor Vehicles Act, 1939, cannot, therefore, be infringed on the ground of nationalisation of transport in this State.

48. The right of the Govt. of India to infringe the petnrs'. right by sanctioning the scheme of nationalisation of transport in this State was, however, justified by the learned Govt. Advocate on the principle that an Act of State may cause dantnum abscue injuria, or damage without injury in law. His argument proceeded on these lines. The Govt. of India took over the governance of the aforesaid 21 Hill States on 15-4-1948. That was an Act of State. There, fore, any rights which the petnrs. as inhabitants of any of the ex-States, may have had to ply buses on roads passing through those States, avail them nothing. It was open to the Govt. of India to take away those rights in exercise of its Sovereign power, & it was not open to the petnrs. to make good those rights in the Municipal Cts established by the new Sovereign, the Govt. of India.

49. In support of the above argument the learned Govt. Advocate cited the following rulings: Secretary of State for India v. Bai Raj bat, A.I.R (2) 1915 P.C 59 : (39 Bom. 625): Vajesingji v. Secretary of State, A.I.R (11) 1924 P.C 216 : (48 Bom. 613) and Asrar Ahmad v. Durgah Committee, Ajmer, A.I.R (34) 1947 P.C 1 : (ILR 1947 KAR 38). The law laid down in all of them is the same, & it is expressed in the second of these rulings as follows:

“When a territory is acquired by a Sovereign State for the first time that is an Act of State. It matters not how the acquisition has been brought about. It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognised ruler. In all cases the result is the same. Any inhabitant of the territory can only make good in the Municipal Cts established by the new Sovereign such rights as that Sovereign has, through his officers, recognised. Such rights as he had under the rule of predecessors avail him nothing. Nay more, even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights, that does not give a title to these inhabitants to enforce these stipulations in the Municipal Cts. The right to enforce remains only with the High Contracting Parties.”

50. There are, however, insuperable difficulties in the way of applying the above rule to the present cases. On the affidavits on record it cannot be ascertained whether the petnrs., were inhabitants of the old States & not of the territories outside those States & within the ambit of the Govt. of India, whether the petnrs. had any right of plying buses prior to 15-4-1948, & if so, those rights had been derived by them from any of those States & not from the Govt. of India itself, and whether the road on which they exercised those rights, though now in Himachal Pradesh, was prior to 15-4-1948 owned by any of those States & not by the Govt. of India. Even supposing that all the conditions necessary for the appln. of the above rule-are present, a refutation of the argument is contained in the above citation itself in the sentence:

“Any inhabitant of the territory can only make good in the Municipal Cts established by the new Sovereign such rights as that Sovereign has, through his officers, recognised.”

51. The Govt. of India did recognise after 15-4-1948, through its transport department, the right of the petnra to ply buses on hire by granting to them regular, as distinguished from only temporary, permits for one year with effect from 1-4-1949.

52. The learned Govt. Advocate laid stress on the fact that the scheme of nationalisation had been sanctioned by the Govt. of India on 20-7-1949, long before the Constitution of India came into force on 26-1-1950. For purposes of application of the rule propounded by the learned Govt. Advocate, however, it is quite immaterial when the Constitution of India came into force. The crucial date for the application of that rule is the date when the Act of State was performed, or, in other words, the date when the territory was acquired by the new Sovereign. This position, clear enough from the above citation from Vajesingji v. Secretary of State, A.I.R (11) 1924 P.C 216 : (48 Bom. 613), is made clearer still by the following observation appearing on p. 218, col. 1 of that ruling:

“The whole object accordingly of enquiry is to see whether, after cession, the British Government has conferred or acknowledged as existing the proprietary right which the applts. claim.”

53. The applts. in that case claimed certain proprietary rights which they had enjoyed prior to cession, Their Lordships examined a number of acts of the officials of the Govt. of India after the cession, & they came to the conclusion that, although, pending inquiry by the Govt. the applts. had been permitted to remain in possession by way of an interim arrangement, the final report made was that the applts.' rights were not those claimed by them. In the present cases, as adverted to above, the very first act performed by the Govt. of India through its transport department was to recsgnise in full the petnrs., right to ply buses on hire by granting to them regular permits for one year with effect from 1-4-1949. The interim arrangement, if any, followed that full recognition consisted in the secretive & illegal acts of the Provincial Transport Authority, in not disposing of according to law the petnrs.' applns. for renewal of permits with a view to giving effect to the Govt.'s scheme or nationalisation of transport. It follows, therefore, that rights which the Govt. of India had already recognised after 15-4-1948 could not be subsequently taken, away by it on the rule based on act of State, & it is open to the petnrs. to make good those rights in the Municipal Cts.

54. There remains the case of the petnr. Prabh Dayal. It has been established unrebuttedly by the affidavit of Shri Mahabir Siagh, Assistant Secretary (Home & Revenue) Himachal Pradesh Secretariat, that this petnr. informed the Secretariat on 26-7-1950 that he had sold off his our No. Him-34. That is the car in respect of whish this petnr. filed his petn for a writ of mandamus on 25-9-1950. It is clear, therefore, that he had sold his car even before filing the petn. His learned counsel however insisted that this petnr. was still entitled to the writ. He referred first of all to R. 4.10 of the Rules. That rule relates to extension of time for production of the permit in order that registration mark of the vehicle may be entered on it where the appct. is not at the date of appln. in possession of the vehicle duly registered. When the vehicle itself has been sold off no question of its registration arises. He then cited R. 429 relating to replacement, bull there is nothing to show that Prabh Dayal intended to replace the vehicle. Prabh Dayal had no right to file his petn. & it must be rejected.

55. In the result all the petns., except that of Prabh Dayal, should be granted since a writ of mandamus will be granted ordering that to be done which a Statute requires to be done: Halsbury, vol. IX p. 751. It may be noted here that the only relief pressed before me was the one which is being hereby granted. In the cases of all the petnrs. except Prabh Dayal a writ in the nature of mandamus shall issue to the Provincial Transport Authority, Himachal Pradesh, directing it to hear & dispose of in accordance with law the applns. for renewal of permits filed twice by each of them, once on the expiry of 31-3-1950 & again on the expiry of 30-6-1950. Until the disposal of these applns. as directed, the said Transport Authority shall permit these six petnrs. to continue to ply the buses for the renewal of those permits the said applns. were made. These six petnrs. will get their costs from the said Authority The petn. of Prabh Dayal is dismissed with costs.

D.H

56. Order accordingly.