November 7, 2024
Constitutional Law 1DU LLBSemester 4

Bhikaji Narain Dhakras v. State of M.P.AIR 1955 SC 781[SR Das, CJ and NH Bhagwati, TL Venkatarama Ayyar, Syed JAfer Imam and N ChandrasekharaAiyar, JJ]

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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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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
    76
    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.
  7. 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.
  8. 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,
    77
    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.
  9. 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
    78
    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.
  10. The result, therefore, is that these petitions must be dismissed.

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