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S.R. DAS, C.J. – This judgment will dispose of all the five petitions (Nos. 189 to 193 of
1955) which have been heard together and which raise the same question as to the
constitutional validity of the C. P. & Berar Motor Vehicles (Amendment) Act, 1947.
- The facts are short and simple. Each of the petitioners has been carrying on business as
stage carriage operator for a considerable number of years under permits granted under
Section 58 of the Motor Vehicles Act, 1939 as amended by the C. P. & Berar Motor Vehicles
(Amendment) Act, 1947. - Prior to the amendment Section 58 of the Motor Vehicles Act, 1939 was in the
following terms:
“58.(1) A permit other than a temporary permit issued under Section 62 shall be
effective without renewal for such period, not less than three years and not more than
five years, as the Regional Transport Authority may 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.”
It will be noticed that under the section as it originally stood the permit granted
thereunder was for a period of not less than 3 years and not more than 5 years and a
permit-holder applying for renewal of the permit had, other things being equal,
preference over new applicants for permit over the same route and would ordinarily
get such renewal. - Very far reaching amendments were introduced by the C. P. & Berar Motor Vehicles
(Amendment) Act, 1947 into the Motor Vehicles Act, 1939 in its application to Central
Provinces and Berar. By Section 3 of the amending Act, item (ii) of sub-Section (1) of
Section 43 of the Central Act was replaced by the following items:
“(ii) fix maximum, minimum or specified fares or freights for stage carriages and
public carriers to be applicable throughout the province or within any area or on any
route within the province, or
(iii) notwithstanding anything contained in Section 58 or Section 60 cancel any
permit granted under the Act in respect of a transport vehicle or class of such permits
either generally or in any area specified in the notification:
Provided that no such notification shall be issued before the expiry of a period of
three months from the date of a notification declaring its intention to do so:
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Provided further that when any such permit has been cancelled, the permit-holder
shall be entitled to such compensation as may be provided in the rules; or
(iv) declare that it will engage in the business of road transport service either
generally or in any area specified in the notification.”
The following sub-section (3) was added after sub-section (2) of Section 58 of the Central
Act by Section 8 of the amending Act, namely:
“(3) Notwithstanding anything contained in sub-section (1), the Provincial
Government may order a Regional Transport Authority or the Provincial Transport
Authority to limit the period for which any permit or class of permits is issued to any
period less than the minimum specified in the Act.”
Section 9 of the amending Act added after Section 58 a new section reading as follows:
“58-A. Notwithstanding anything hereinbefore contained the Provincial
Government may by order direct any Regional Transport Authority or the Provincial
Transport Authority to grant a stage carriage permit to the Provincial Government or
any undertaking in which the Provincial Government is financially interested or a
permit-holder whose permit has been cancelled under Section 43 or any local
authority specified in the order.”
The result of these amendments was that power was given to the Government (i) to fix
fares or freights throughout the Province or for any area or for any route, (ii) to cancel any
permit after the expiry of three months from the date of notification declaring its intention to
do so and on payment of such compensation as might be provided by the Rules, (iii) to
declare its intention to engage in the business of road transport generally or in any area
specified in the notification, (iv) to limit the period of the license to a period less than the
minimum specified in the Act, and (v) to direct the specified Transport Authority to grant a
permit, inter alia, to the Government or any undertaking in which Government was
financially interested. It may be mentioned here that in the State of Madhya Pradesh there are
two motor transport companies known as C. P. Transport Services Ltd., and Provincial
Transport Co. Ltd., in which, at the date of these writ petitions, the State of Madhya Pradesh
and the Union of India held about 85 per cent. of the share capital. Indeed, since the filing of
these petitions the entire undertakings of these companies have been purchased by the State of
Madhya Pradesh and the latter are now running the services on some routes for which permits
had been granted to them. - A cursory perusal of the new provisions introduced by the amending Act will show that
very extensive powers were conferred on the Provincial Government and the latter were
authorised, in exercise of these powers, not only to regulate or control the fares or freights but
also to take up the entire motor transport business in the province and run it in competition
with and even to the exclusion of all motor transport operators. It was in exercise of the
powers under the newly added sub-section (3) of Section 58 that the period of the permit was
limited to four months at a time. It was in exercise of powers conferred on it by the new
Section 43(l)(iv) that the Notification hereinafter mentioned declaring the intention of the
Government to take up certain routes was issued. It is obvious that these extensive powers
were given to the Provincial Government to carry out and implement the policy of
nationalisation of the road transport business adopted by the Government. At the date of the
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passing of the amending Act, 1948 there was no such thing as fundamental rights of the
citizens and it was well within the legislative competency of the Provincial Legislature to
enact that law. It has been conceded that the amending Act was, at the date of its passing, a
perfectly valid piece of legislation. - Then came our Constitution on the 26-1-1950. Part III of the Constitution is headed
“Fundamental Rights” and consists of Articles 12 to 35. By Article 19(1) the Constitution
guarantees to all citizens the right to freedom under seven heads. Although in Article 19(1) all
these rights are expressed in unqualified language, none of them, however, is absolute, for
each of them is cut down or limited by whichever of the several clauses (2) to (6) of that
Article is applicable to the particular right. Thus the right to practise any profession or to
carry on any occupation, trade or business conferred by Article 19(1)(g) was controlled by
clause (6) which, prior to its amendment to which reference will presently be made, ran as
follows:
“(6) 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, and, in particular, nothing in the said
sub-clause shall affect the operation of any existing law in so far as it prescribes or
empowers any authority to prescribe, or prevent the State from making any law
prescribing or empowering any authority to prescribe, the professional or technical
qualifications necessary for practising any profession or carrying on any occupation,
trade or business.”
The fundamental rights conferred by Articles 14 to 35 are protected by the provisions of
Article 13. - The amending Act (III of 1948) was, at the commencement of the Constitution, an
existing law. The new provisions introduced by the Act authorised the Provincial Government
to exclude all private motor transport operators from the field of transport business. Prima
facie, therefore, it was an infraction of the provisions of Article 19(1)(g) of the Constitution
and would be void under Article 13(1), unless this invasion by the Provincial Legislature of
the fundamental right could be justified under the provisions of clause (6) of Article 19 on the
ground that it imposed reasonable restrictions on the exercise of the right under Article
19(1)(g) in the interests of the general public. In Shagir Ahmad v. The State of U.P.[(1955) 1
SCR 707], it was held by this Court that if the word “restriction” was taken and read in the
sense of limitation and not extinction then clearly the law there under review which, like the
amending Act now before us, sanctioned the imposition of total prohibition on the right to
carry on the business of a motor transport operator could not be justified under Article 19(6).
It was further held in that case that if the word “restriction” in clause (6) of Article 19 of the
Constitution, as in other clauses of that Article, were to be taken in certain circumstances to
include prohibition as well, even then, having regard to the nature of the trade which was
perfectly innocuous and to the number of persons who depended upon business of this kind
for their livelihood, the impugned law could not be justified as reasonable. In this view of the
matter, there is no escape from the conclusion that the amending Act, insofar as it was
inconsistent with Article 19(1)(g) read with clause (6) of that Article, became, under Article
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13(1), void “to the extent of such inconsistency” and if there were nothing else in the case the
matter would have been completely covered by the decision of this Court in that case. - On the 18-6-1951, however, was passed the Constitution (First Amendment) Act, 1951.
By Section 3(1) of that Act for clause (2) of Article 19 a new sub-clause was substituted
which was expressly made retrospective. Clause (6) of Article 19 was also amended.
It will be noticed that clause (6), as amended, was not made retrospective as the amended
clause (2) had been made. The contention of the respondents before us is that although the
amending Act, on the authority of our decision in Shagir Ahmad case, became on and from
the 26-1-1950 void as against the citizens to the extent of its inconsistency with the provisions
of Article 19(1)(g), nevertheless, after the 18-6-1951 when clause (6) was amended by the
Constitution (First Amendment) Act, 1951 the amending Act ceased to be inconsistent with
the fundamental right guaranteed by Article 19(1)(g) read with the amended clause (6) of that
Article, because that clause, as it now stands, permits the creation by law of State monopoly
in respect, inter alia, of motor transport business and it became operative again even as
against the citizens. The petitioners, on the other hand, contend that the law having become
void for unconstitutionality was dead and could not be vitalised by a subsequent amendment
of the Constitution removing the constitutional objection, unless it was re-enacted, and
reference is made to Prof. Cooley’s work on Constitutional Limitations, Vol. I, p. 384 Note
referred to in our judgment in Shagir Ahmad case and to similar other authorities. The
question thus raised by the respondents, however, was not raised by the learned AdvocateGeneral in that case, although the notification was published by the U.P. Government on the
25-3-1953 and the proposed scheme was published on the 7-4-1953, i.e., long after the
Constitution (First Amendment) Act, 1951 had been passed. This question was not considered
by this Court in Shagir Ahmad case. - The meaning to be given to the word “void” in Article 13 is no longer res integra, for
the matter stands concluded by the majority decision of this Court in Keshavan Madhava
Menon v. The State of Bombay [AIR 1955 SC 128]. We have to apply the ratio decidendi in
that case to the facts of the present case. The impugned Act was an existing law at the time
when the Constitution came into force. That existing law imposed on the exercise of the right
guaranteed to the citizens of India by Article 19(1)(g) restrictions which could not be justified
as reasonable under clause (6) as it then stood and consequently under Article 13(1) that
existing law became void “to the extent of such inconsistency”. As explained in Keshavan
Madhava Menon case the law became void not in toto or for all purposes or for all times or
for all persons but only “to the extent of such inconsistency”, that is to say, to the extent it
became inconsistent with the provisions of Part III which conferred the fundamental rights on
the citizens. It did not become void independently of the existence of the rights guaranteed by
Part III. In other words, on and after the commencement of the Constitution the existing law,
as a result of its becoming inconsistent with the provisions of Article 19(1)(g) read with
clause (6) as it then stood, could not be permitted to stand in the way of the exercise of that
fundamental right. Article 13(1) by reason of its language cannot be read as having
obliterated the entire operation of the inconsistent law or having wiped it out altogether from
the statute book. Such law existed for all past transactions and for enforcement of rights and
liabilities accrued before the date of the Constitution, as was held in Keshavan Madhava
Menon case. The law continued in force, even after the commencement of the Constitution,
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with respect to persons who were not citizens and could not claim the fundamental right. In
short, Article 13(1) had the effect of nullifying or rendering the existing law which had
become inconsistent with Article 19(1)(g) read with clause (6) as it then stood ineffectual,
nugatory and devoid of any legal force or binding effect only with respect to the exercise of
the fundamental right on and after the date of the commencement of the Constitution.
Therefore, between the 26-1-1950 and the 18-6-1951 the impugned Act could not stand in the
way of the exercise of the fundamental right of a citizen under Article 19(1)(g). The true
position is that the impugned law became, as it were, eclipsed, for the time being, by the
fundamental right. The effect of the Constitution (First Amendment) Act, 1951 was to remove
the shadow and to make the impugned Act free from all blemish or infirmity. If that were not
so, then it is not intelligible what “existing law” could have been sought to be saved from the
operation of Article 19(1)(g) by the amended clause (6) insofar as it sanctioned the creation of
State monopoly, for, ex hypothesi, all existing laws creating such monopoly had already
become void at the date of the commencement of the Constitution in view of clause (6) as it
then stood. The American authorities refer only to post-Constitution laws which were
inconsistent with the provisions of the Constitution. Such laws never came to life but were
still born as it were. The American authorities, therefore, cannot fully apply to preConstitution laws which were perfectly valid before the Constitution. But apart from this
distinction between pre-Constitution and post-Constitution laws on which, however, we need
not rest our decision, it must be held that these American authorities can have no application
to our Constitution. All laws, existing or future, which are inconsistent with the provisions of
Part III of our Constitution are, by the express provision of Article 13, rendered void “to the
extent of such inconsistency”. Such laws were not dead for all purposes. They existed for the
purposes of pre-Constitution rights and liabilities and they remained operative, even after the
Constitution, as against non-citizens. It is only as against the citizens that they remained in a
dormant or moribund condition. In our judgment, after the amendment of clause (6) of Article
19 on the 18-6-1951, the impugned Act ceased to be unconstitutional and became revivified
and enforceable against citizens as well as against non-citizens. It is true that as the amended
clause (6) was not made retrospective the impugned Act could have no operation as against
citizens between the 26-1-1950 and the 18-6-1951 and no rights and obligations could be
founded on the provisions of the impugned Act during the said period whereas the amended
clause (2) by reason of its being expressly made retrospective had effect even during that
period. But after the amendment of clause (6) the impugned Act immediately became fully
operative even as against the citizens. The notification declaring the intention of the State to
take over the bus routes to the exclusion of all other motor transport operators was published
on the 4-2-1955 when it was perfectly constitutional for the State to do so. In our judgment
the contentions put forward by the respondents as to the effect of the Constitution (First
Amendment) Act, 1951 are well-founded and the objections urged against them by the
petitioners are untenable and must be negatived. - The petitioners then contend that assuming that the impugned Act cannot be
questioned on the ground of infringement of their fundamental right under Article 19(1)(g)
read with clause (6) of that Article, there has been another infraction of their fundamental
right in that they have been deprived of their property, namely, the right to ply motor vehicles
for gain which is an interest in a commercial undertaking and, therefore, the impugned Act
does conflict with the provisions of Article 31(2) of the Constitution and again they rely on
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our decision in Shagir Ahmad case. Here, too, if there were nothing else in the case this
contention may have been unanswerable. But unfortunately for the petitioners there is the
Constitution (Fourth Amendment) Act, 1955 which came into force on the 27-4-1955.
There can be no question that the amended provisions, if they apply, save the impugned
law, for it does not provide for the transfer of the ownership or right to possession of any
property and cannot, therefore, be deemed to provide for the compulsory acquisition or
requisitioning of any property. But the petitioners contend, as they did with regard to the
Constitution (First Amendment) Act, 1951, that these amendments which came into force on
the 27-4-1955 are not retrospective and can have no application to the present case. It is quite
true that the impugned Act became inconsistent with Article 31 as soon as the Constitution
came into force on the 26-1-1950 as held by this Court in Shagir Ahmad case and continued
to be so inconsistent right up to the 27-4-1955 and, therefore, under Article 13(1) became
void “to the extent of such inconsistency.” Nevertheless, that inconsistency was removed on
and from the 27-4-1955 by the Constitution (Fourth Amendment) Act, 1955. The present writ
petitions were filed on the 27-5-1955, exactly a month after the Constitution (Fourth
Amendment) Act, 1955 came into force, and, on a parity of reasoning hereinbefore
mentioned, the petitioners cannot be permitted to challenge the constitutionality of the
impugned Act on and from the 27-4-1955 and this objection also cannot prevail. - The result, therefore, is that these petitions must be dismissed.
