Bhikaji Narain Dhakras v. State of M.P., (SC) BS112902
SUPREME COURT OF INDIA

(Large Bench)

Before:- S.R. Das, Actg., C.J.I., N. H. Bhagwati, T. L. Venkatarama Ayyar, S. J. Imam and N. Chandrasekhara Aiyar, JJ.

Petitions Nos. 189 to 193 of 1955. D/d. 29.9.1955.

Bhikaji Narain Dhakras and others - Petitioners

Versus

State of M.P. and another - Respondents

For the Petitioner :- Mr. G. S. Pathak, Senior Advocate, Mr. Rameshwar Nath and Mr. Rajinder Narain, Advocates. Mr. Rameshwar Nath and Mr. Rajinder Narain, Advocates and Mr. Sri Narain Andley and Mr. Rajinder Narain, Advocates.

For the Respondent :- Mr. T. L. Shevde, Advocate-General of Madhya Pradesh, Mr. I. N. Shroff, Advocates.

Constitution of India, Articles 13, 19(1)(g) and 19(6) and 31(2) - C.P. and Berar Motor Vehicles (Amendment) Act, 1948 - Freedom of Trade - Motor Vehicles - Repugnancy between Statutes - C.P. and Berar Motor Vehicles (Amendment) Act - Constitutional validity - It was an existing law when the Constitution came into force - By virtue of Clause (6) to Article 19 the Act ceased to be inconsistent with the fundamental rights under Article 19(1)(g).

[Paras 8, 9 and 10]

Cases Referred :-

Shagir Ahmad v. State of U. P. AIR 1954 Supreme Court 728.

Behram Khurshed Pesikaka v. State of Bombay', AIR 1955 Supreme Court 123.

Keshavan Madhava Menon v. State of Bombay' AIR 1951 Supreme Court 128.

Federal Court in Lal Singh v. Central Provinces and Berar", AIR 1944 Federal Court 62.

Rajah of Bobbili v. State of Madras', AIR 1952 Madras 203 at pp 216-216.

State of West Bengal v. Subodh Gopal, AIR 1954 Supreme Court 92.

JUDGMENT

Das, 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. and Berar Motor Vehicles (Amendment) Act, 1947 (Act III of 1948).

2. 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, Motor Vehicles Act, 1939 (Central Act IV of 1939) as amended by the C. P. and Berar Motor Vehicles (Amendment) Act, 1947 (Act III of 1948).

3. Prior to the amendment Section 58, Motor Vehicles Act, 1939 was in the following terms :

4. 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 ( i) of Section 43 of the Central Act was replaced by the following items:

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.

5. 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), Section 38 that the period of the permit was limited to four months at a time. It was in exercise of power conferred on it by the new Section 43(1) (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 passing of the amending Act (III of 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 at law. It has been conceded that the amending Act was, at the date of its passing, a perfectly valid piece of legislation.

6. Then came our Constitution on 26-1-1930. Part III of the Constitution is headed "Fundamental Rights" and consists of Articles 12 to 35. By Article 19(1) the Constitution of Indiaguarantees 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 :

7. 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 of Indiaand 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. AIR 1954 Supreme Court 728 , 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 it 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, in so far as it was inconsistent with Article 19(1)(g) read with clause (6) of that Article, became, under Article 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.

8. On 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. Cause (6) of Article 19 was also amended. That clause, so amended, now reads as follows :

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's case ('supra'), became on and from 26-1-1950 void as against the citizens to the extent of its inconsistency with the provisions of Article 19(1)(g), nevertheless after 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 judgement in 'Shagir Ahmad's case (A') ('supra') and to similar other authorities. The question thus raised by the respondents, however, was not raised by the learned Advocate, General in that case, although the notification was published by the U. P. Government on 25-3-1953 and the proposed scheme was published on 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's case 'for it was there conceded (see pp. 735-36 of the report) that the validity of the U. P. Act which, in this respect, was similar to the C. P. and Berar Act now under consideration, was not to be decided by applying the provisions of the amended clause (6). Nor was this problem raised before or considered by this Court in 'Behram Khurshed Pesikaka v. State of Bombay', AIR 1955 Supreme Court 123. We, therefore, conceive it to be open to us to go into the new question that has now been mooted before us and to consider what effect the amended clause (6) has on the impugned Act. This involves a question of construction of Article 13 of the Constitution.

9. 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 1951 Supreme Court 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's case ' ('supra') 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's case '. The law continued in force, even after the commencement of the Constitution, 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 26-1-1950 and 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(l) (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 lie saved from the operation of Article 19(1)(g) by the amended clause (6) in so far 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 pre-Constitution 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 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 26-1-1950 and 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 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.

10. 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 he provisions of Article 31(2) of the Constitution of Indiaand again they rely on our decision in 'Shagir Ahmad's 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 27-4-1955. By Section 2 of that Act, Article 31 of the Constitution of Indiawas amended and for clause (ii) of that Article the following clauses were substituted:

Article 31A of the Constitution was also amended. 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 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 Construction came into force on 26-1-1950 as held by this Court in 'Shagir Ahmad's case ' ('supra') and continued to be so inconsistent right up to 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 27-4-1955 by the Constitution (Fourth Amendment) Act, 1955. The present writ petitions were filed on 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 27-4-1955 and this objection also cannot prevail.

11. Learned counsel for the petitioners sought to raise the question as to the invalidity of the impugned Act even before the advent of the Constitution. Prior to the Constitution, when there were no fundamental rights. Section 299 of the Government of India Act, 1935 which corresponds to Article 31 had been construed by the Federal Court in Lal Singh v. the Central Provinces and Berar", AIR 1944 Federal Court 62 , and in other cases referred to in Rajah of Bobbili v. the State of Madras', AIR 1952 Madras 203 at pp 216-216. and it was held by the Federal Court that the word "acquisition" occurring in Section 299 had the limited meaning of actual transference of ownership and not the wide meaning of deprivation of any kind that has been given by this Court in 'State of West Bengal v. Subodh Gopal, AIR 1954 Supreme Court 92 , to that word acquisition appearing in Article 31(2) in the light of the other provisions of the Constitution.

It is, therefore not clear at all that the impugned Act was in conflict with Section 299 of Government of India Act; 1935. Besides, this objection was not taken or even hinted at in the petitions and cannot, be permitted to be raised at this stage.

12. The result therefore, is that these petitions must be dismissed. In the circumstances of this case we make no order as to costs.

Petitions dismissed.