1. The petitioner Jain Transport and General Trading Company and a large number of other persons, who are petitioners in the connected writ petitions, carried on the business of plying motor vehicles and stage carriages on hire in the State of Uttar Pradesh. Their rights have been regulated under the Motor Vehicles Act of 1939. The petitioner held permit Nos. 8-A and 9-A under the Act for running stage carriages on Aligarh-Iglas-Mathura route. These permits were granted to the petitioner in the year 1954 and under the provisions of the Motor Vehicles Act were valid upto August 1957.
Sometime in the year 1947 the State Government conceived the idea of running their own buses on the public thoroughfares. In the beginning they decided to run as competitors with private bus owners but later on they decided to run in exclusion of private bus owners. This was sought to be done with the aid of the Motor Vehicles Act. Under the provisions of Section 42(3) of the Motor Vehicles Act, the State Government had not to obtain permits for their own vehicles and could run any number of carriages they liked. In order to carry out this object of State monopoly the Transport Authorities started cancelling the permits issued to the private operators and refusing to renew their permits.
In the year 1949 in pursuance of the aforesaid policy the transport authorities granted only temporary permits to the stage carriage permit holders. In 1950 the petitioner was also served with a notice by the Regional Transport authority to the effect that the Government intended to run their own stage carriages, that the petitioner would not be allowed to run his stage carriages and that the petitioner's application for the renewal of the permit was not to be considered. Thereafter the petitioner along with a number cf other bus operators filed a writ petition under Article 226 of the Constitution for issue of an appropriate writ against the unauthorised use of the provisions of the Motor Vehicles Act by the Government.
That petition was disposed of by a Full Benchof this Court. Thereafter as the State Government,intended to have the exclusive right to operate road transport services within its territory, the U.P. Transport Act II of 1951 was passed which became law from 10-2-1951. The constitutionality of this Act was also challenged later on by means of a writ petition under Article 226 of the Constitution in this Court. This Court by its decision dated 17-11-1953 held that the U. P. Transport Act II of 1951 was a constitutional Act and rejected the writ petition.
2. An appeal was filed against the decision of this Court to the Supreme Court and also petitions under Article 32 of the Constitution were directly filed in the Supreme Court. The Supreme Court by its judgment dated 13-10-1954 allowed the appeal and declared the U.P. Transport Act II of 1951 unconstitutional. Thereafter a further assistance was sought of the Legislation and U.P. Road Transport Services (Development) Act IX of 1955 hereinafter called the impugned Act was passed by the U. P. Legislature. This was published in U.P. Gazette of March 24, 1955.
Under Section 3 of the aforesaid Act a notification dated 17-5-1955 which was published in U. P. Gazette dated 21-5-1955, was issued. A scheme was promulgated under the provisions of the Act which directed that certain route specified therein would be exclusively served by stage carriages of the State Government and all private operators were excluded from those routes. Subsequent to that, a notification under Section 4 of the Act dated 3-11-1955 was published on 12-11-1955, formulating schemes under the Act.
There was a scheme formulated for the Aligarh-Iglas-Mathura route from which the present petitioner was excluded from plying stage carriages and the permits held by the petitioner were transferred to other routes. Certain objections were fried to this scheme. It is not necessary at this stage to deal with further facts relating to the consideration of the objections but ultimately a notification under Section 8 of the impugned Act, dated 30-6-3956, was published in the U.P. Gazette of 23-6-1956. A further notice dated 25-6-1956 under the signature of the Secretary, Regional Transport authority, was received by the petitioner intimating that the petitioner's stage carriages under permits 8A and 9A will cease to ply on the disputed route or portion thereof and will be transferred to other route. On these facts the present petition was filed challenging the constitutionality of the U.P. Transport Services (Development) Act IX of 1955.
3. In this petition and the other connected petitions the main contention of the petitioners is that the aforesaid Act is unconstitutional and it is convenient to dispose of all these writ petitions so far as this common question is concerned by one judgment. A number of other points have been raised separately in each of these petitions and all those points will be considered when the individual petitions are considered. The constitutionality of the Act has been attacked on the following grounds:--
1. that the provisions of the Act conflicted with the fundamental rights of the petitioners guaranteed under Article 19(1)(g) of the Constitution;
2. that the Act was an invalid piece of legislation as it purported to acquire the interest of the petitioners in a commercial undertaking without making any provision for compensation as isrequired under Article 31(2) of the Constitution;
3. that the Act was discriminatory in its character and contravened the provisions of Article 14 of the Constitution;
4. that the Act violated the guarantee of freedom of inter-State and intra-State trade embodied in Article 301 of the Constitution; and lastly
5. that Section 3 of the Act is a delegated piece of legislation and is consequently unconstitutional.
4. Before dealing with the questions raised by counsel for the petitioners it is necessary to refer to some of the provisions of the Act, to know the general scheme of the Act. It must be stated at the very outset that the general scheme of the present Act is similar to the Act of 1951 except that certain changes have been made ia Section 3 and also provision was made for payment of compensation. The preamble of the Act is as follows:--
'Whereas it is expedient in the interest of the general public and for the efficient organisation of road transport and for the planned development of the industrial and economic resources of the State that the provisions of the said Ordinance should be replaced by an Act of the Legislature;
It is hereby enacted in the Sixth year of the Republic of India as follows:--
' Section 2 of the Act then defines certain terms used in the Act and Section 3 provides as follows:-- 'Where the State Government is of the opinion that it is necessary in the interests of the general public and for Sub-serving the common good, or for maintaining and developing efficient road transport system so to direct, it may by notification in the official Gazette declare that the road transport services in general or any particular class of such service on any route or portion thereof as may be specified, shall be run and operated exclusively by the State Government, or by the State Government in conjunction with railways or he run and operated partly by the State Government and partly by others and in accordance with the provisions of this Act.'
Section 4 provides for publication of a scheme framed in accordance with the above declaration. Section 5 provides for the manner of publication of notice regarding the cancellation and transfer of the permits, Section 6 provides for objections and Section 7 provides for the constitution of a Board which is to dispose of the objections. Thereafter Section 8 provides for the publication of the final scheme. Section 9 then provides for the alteration or modification of the scheme and Section 10, which is more or less similar to the earlier Section 7, provides for the consequence which follow the publication of the scheme. So long as the scheme remains in force the stage carriages of the state Government were to exclusively run on some routes and on some private operators to be associated with the State carriages. The State Government shall be authorised to direct in these cases the dispensation of the State Transport vehicles from the necessity of taking out permits. Further powers have been given to the State Government to cancel, alter or modify any existing permits or to add any fresh condition to any permit in respect of any transport vehicle. Section 11 provides for compensation for premature cancellation of permits or for the curtailment of routes. Section 12 provides for the purchase of motor vehicles of the private operators and Section 13 provides for the development of the Motor Transport Industry. Section 15 deals with the appointment of an Advisory Committee. It may be necessary at a later stage to refer to the provisions of Sections 19 and 20 also.
5. In the earlier case when the constitutionality of Act II of 1951 was challenged a good deal of argument was advanced on the nature of the right possessed by the petitioner but lor the purposes of the presest case it is not necessary to go into that question as it has been finally decided by the Supreme 'Court in the earlier case of Saghir Ahmad v. State of U. P. : 1SCR707 of the report following observations made in the case of C.S.S. Motor Service Tenkasi v. State of Madras : AIR1953Mad279 were fully approved:
'The true position then is, that all public streets and roads vest in the State, but that the State holds them as trustees on behalf of the public. The members of the public are entitled as beneficiaries to use them as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the pathways.
'The State as trustees on behalf of the public is entitled to impose all such limitations on the character and extent of the user as may be requisite for protecting the rights of the public generally;...... but subject to such limitationsthe right of a citizen to carry on business in transport vehicles on public pathways cannot be denied to him on the ground that the State owns the highways.'
6. It was further observed by their Lordships of the Supreme Court in this case that within the limits imposed by State regulations any member of the public can ply a motor vehicle on a public road. To that extent he can also carry on the business of transporting passengers with the aid of the vehicles. It is to this carrying on of the trade or business that the guarantee in Article 19(1)(g) is attracted and a citizen can legitimately complain if any legislation takes away or curtails that right any more than is permissible under Clause (6) of that article. In that case assuming that the legislation curtailed the fundamental rights guaranteed to the petitioner under Article 19(1)(g) it was sought to be justified on the ground that it imposed only reasonable restrictions. This contention, however, was not accepted by the Supreme Court. This question, however, in view of the Constitution (First) Amendment Act of 1951 by which Article 19 of the Constitution was amended has lost its importance and the State Government has rightly sought the protection of the new amendment of Article 19 under the First Constitutional Amendment Act. Article 19 Clause (6) as amended by the Constitution (First) Amendment Act of 1951 which came into force on 18-6-1951 is 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 and, in particular, nothing in the said Sub-clause shall affect the operation of any existing law in so far as it relates to or prevent the State from making any law relating to:--
(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial of citizens or otherwise.'
7. The argument of the State counsel is thatthe present law relates to the carrying on by the State of a trade, business or service to the exclusion, complete or partial, of citizens or otherwise and as such is protected under Clause (6) of Article 19. Mr. Kackar, who appeared for the petitioner, conceded that the present law is covered by Article 19(6)(ii) but the contention raised by him is that the present amendment only recognised the creation of a monopoly as a reasonable restriction. But it does not relieve the State of the responsibility of establishing that the law is in the interest of the general public. The contention of learned counsel was that the effect of the amendment was only to relieve the State of the necessity of establishing that a monopoly or a quasi monopoly came within reasonable restriction but it did not relieve the State of the necessity of showing that the law enacted was in the interest of the general public. We do not think there is any substance in this contention. In our view the scope of the amendment of Article 19 was that the creation of a monopoly in favour of the State was a permissible restriction and this view of ours, we believe is in consonance with the following observations of the Supreme Court in Saghir Ahmad's case (A)
'The result of the amendment is that the State would not have to justify such action as reasonable at all in a court of law and no objection could be taken to it on the ground that it is an infringement of the right guaranteed under Article 19(1)(g) of the Constitution. It is quite true that if the present statute was passed after the coming into force of the new clause in Article 19(6) of the Constitution the question of reasonableness would not have arisen at all and the appellants' case on this point, at any rate, would have been unarguable.'
8. In our opinion, the amendment debars the petitioner to attack the validity of this Act on the ground of the infrigement of the fundamental right guaranteed under Article 19(1)(g) of the Constitution inasmuch as the impugned enactment is covered by the provisions of Article 19(6) as amended by the First Constitutional Act of 1951.
9. The next contention raised by the petitioner is that the impugned Act is hit by the provisions of Article 31 of the Constitution as it does not provide for compensation and neither fixes the amount of compensation nor specifies the principles on which, and the manner in which, compensation is to be determined and given. In Saghir Ahmad's case (A) the Supreme Court had held that Act II of 1951 was unconstitutional as the prohibition of trade or business of the citizen by that Act amounted to deprivation of their property or interest in a commercial undertaking within the meaning of Article 31(2) of the Constitution and therefore it offended against the provisions of that clause inasmuch as no provision for compensation has been made in the Act. Firstly it is contended by the State that the present petition will be governed by the Constitution (Fourth) amendment Act of 1955 and therefore it was not necessary to provide for compensation in the impugned Act. It was secondly contended that even if it be assumed that unamended Article 31 of the Constitution applied to the present case there was provision in the Act for payment of compensation as required under the unamended Article 31(2) of he Constitution. The first question therefore to be determined in the case is whether the present case will be governed by the provisions of the amended Article 31 or 31(2) as unamended. The present Act received the assent of the Presidenton 23-3-1955 and was published in the Uttar Pradesh Gazette Extra-ordinary on 24-3-1955. Clause(3) of Section 1 of the Act provides that it shall bedeemed to have come into force on and from18-6-1951. The C9nstitution (Fourth) AmendmentAct of 1955 received the assent of the Presidenton 27-4-1955. It is, therefore, dear that the amendment of Article 31 came in force on 27-4-1955 whilethe impugned Act had come in force on 24-3-1955.Amended Article 31 Clause (2) of the Constitution isas follows:--
'No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned and either fixes the amount of the compensation or specifies the principles on which and the manner in which, the compensation is to be determined and given; and no such law shall be called in question in any court on the ground that the compensation provided by that law is not adequate.'
Clause (2A) of Article 31 added under the Constitution (Fourth) Amendment Act reads as follows:--
'Where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property.'
10. It is conceded by the petitioner that if this amended Act applies to the facts of the present case then, as the impugned law did not provide for the transfer of the ownership or right to possession of any property to the State it could not be deemed to provide for the compulsory acquisition or requisitioning of property and as such it will not be incumbent on the State to justify this law on the ground that it is for public purpose and provide for compensation. But it was strenuously contended by counsel for the petitioner that as the Constitution (Fourth Amendment) Act by which Clause (2A) was introduced in Article 31 came in force on 27-4-1955 that is, after the impugned act had been passed the amendment could not retrospectively validate the impugned act which had already become void under Article 31(2).
11. The present petition was filed in this Court on 1-8-1956 after the constitutional amendment had come into force and the relief claimed in the petition is for quashing the notifications under Sections 3, 4, 8 and 10 which were issued on 17-5-1955, 3-11-1955, 20-6-1956 and 25-5-1956 respectively and for a writ of mandamus directing the opposite parties not to interfere in any manner with the applicant's plying his stage carriages under permits Nos. 8A and 9A on Mathura-Iglas Aligarh route. It is, therefore, clear, that all the impugned notifications were issued after the emended Clause (2A) of Article 31 had come into existence and even the petition challenging the validity of the impugned Act was filed subsequent to that. The question which has, therefore, to be determined is whether the impugned Act though passed at the time when the unamended Article 31 of the Constitution was in force is saved by a subsequent amendment of the Constitution or not.
12. The argument of the Advocate General is that Article 31 of the Constitution only guarantees a fundamental right to a citizen and any law which contravenes such a fundamental right is void only to the extent of the contravention. But such a law cannot be regarded as non-existent and as soon as the provisions of the Constitution,which render the provisions of the impugned Act unconstitutional, are removed and contravention ceases to exist the law becomes operative as against the citizen. Part III of the Constitution only guarantees certain fundamental rights to a any law made by a Legislature which contravenes any of the guarantees cannot be enforced to the extent of the contravention.
If there is an amendment in the Constitution and the amendment has the effect of varying the extent of the guarantee then after the amendment and to the extent that the conflict between the law made and the altered position of the guarantee there could be no bar to the enforceability of the law. Reliance has been placed by the Advocate General on the case of Bhikaji Narain v. State of Madhya Pradesh : 2SCR589 . It is necessary to refer to the facts of that case in order to appreciate the points decided in that case. The petitioners in that case were carrying on business as stage carriage operators for some time under permits granted to them under Section 58 of the Motor Vehicles Act, 1939 as amended by the C. P. & Berar Motor Vehicles (Amended) Act, 1947.
Under the unamended Act Section 58 of the Motor Vehicles Act a permit was granted 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. By the amendment brought about in the Act of 1939 by the Act of 1947 Section 43 of the Central Act was replaced by another Section and by Clause (iii) of the new section it was provided that notwithstanding anything contained in Section 58 or Section 60 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 could be cancelled.
Under the proviso to that section it was laid down that when any such permit has been cancelled, the permit-holder was to be entitled to such compensation as may be provided in the rules. Power was also given under the amended Act to the State Government to limit the period for which any permit or class of permit was to be issued. Under the amendment Act power was given to the Government to fix fares or freights throughout the Province or for any area or for any route; 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; to diclare its intention to engage in the business of road transport generally or in any area specified in the notification; to limit the period of the license to a period less than the minimum specified in the Act and to direct the specified Transport Authority to grant a permit inter alia, to the Government or any undertaking in which Government was financially interested.
13. Thus the amendment gave very wide and extensive powers to the Government. In the exercise of powers conferred by the amended Act a notification was issued on 4-2-1955 declaring the intention of the Government to take up certain routes. The petitions were brought challenging the validity of the amended Act on the ground that after coming into force of the Constitution on 26-1-1950 the provisions of the amended Act became inconsistent with the provisions of Article 19 inasmuch as the Act infringed the fundamental rights guaranteed to the petitioners to carry onbusiness and that the notification amounted to acquisition of property without payment of compensation. On 18-6-1951, however the Parliament passed the Constitution (First Amendment) Act of 1951 and by Section 3 (1) of that Act for Clause (2) of Article 19 a new sub-clause was substituted which was expressly made retrospective. By the same amendment Clause (6) of Article 19 was also amended which empowered the creation of a monopoly in favour of the State. Although this provision was not made retrospective yet in that case the contention raised on behalf of the State was that as by the time the petitions had been filed the amended Article 19(6) had come into force, the inconsistency had been removed and the petitions must fail on that ground, this contention was accepted by the Supreme Court and the petitions were rejected. It is necessary to point out that in the case of Saghir Ahmad (A) when the petitions had been filed in this Court the (First) Constitution Amendment Act by which Article 19 had been amended had come into force. Dealing with the amendment of Article 19 of the Constitution it was observed in Bhikaji's case (C):--
'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 Saghir Ahmad's case (A) (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 unconstitutionally 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'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 (A), for it was there conceded 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 Khurshid Pesikaka v. State of Bombay 0065/1954 : 1955CriLJ215 . 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.'
14. The ground on which this case is sought to be distinguished by the counsel for the Petitioner, is that this case involved an interpretation of Article 13(1) of the Constitution. Their Lordships of he Supreme Court In this case were considering the effect of the subsequent constitutional amendment on pre-constitutional laws and any expression of opinion in that connection cannot be made applicable to the case of post-constitution laws. It is true that to Bhikaji Narain's case (C) the question which was directly involved was the constitutionality of a pre-Constitution Act.
But in dealing with that question their Lordships of the supreme Court considered the meaning of the word 'void' in Article 13(1) of the Constitution and also dealt with the case of Saghir Ahmad (A) which admittedly related to a post-Constitution Act and in the absence of anything in the context to the contrary the word 'void' in Clause (2) ought not to be given a different meaning from that given to it in Clause (1) of Article 13 by the consistent decisions of the Supreme Court. It was also contended by the Advocate-General that although Bhikaji Narain's case (C) related to a pre-Constitution Act nevertheless the observations made by the acting Chief Justice apply with equal force to the case of a post-constitutional Act and the principles on which that decision is based can be made applicable to the facts of the present case.
For this purpose reliance was placed on certain observations in Bhikaji's case (C). After discussing the meaning to be given to the word 'void' in Article 13 of the Constitution their Lordships observed at p. 599 (of SCR) : (at P. 785 of AIR) of the report as follows:--
'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 22-1-1950 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 the period.
15. TO our mind this case has been decided on the interpretation of the word 'void' in Article 13. The American authorities were held by the Supreme Court to be inapplicable not only on the ground that those authorities dealt with post-Constitution laws but also on the basis of theinterpretation put by the Supreme Court on the word 'void' in Article 13. It is conceded by the counsel for the petitioner that the meaning of the word 'void' in Article 13(1) is no longer res integra and the matter stands concluded by a series of decisions of the Supreme Court but it has been contended that ail these cases dealt with the interpretation of the word 'void' in Article 13(1) of the Constitution.
Article 13 of the Constitution reads as follows:--
'(1) All laws in force in the territory of India immediately before, the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.'
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.'
16. It has been contended by counsel for the petitioner that Sub-clause (1) of Article 13 deals with existing laws which were validly enacted under the Government of India Act, 1935 or similar earlier constitutional provisions. It only renders after the coming in force of the Constitution, the inconsistent parts of the existing Acts void. Clause (2) of Article 13 on the other hand starts with an injunction against the State forbidding it to enact any law taking away or abridging the rights conferred by Part III of the Constitution. It was, therefore, said that to that extent it creates a legislative incompetence and any law passed in contravention of such an injunction will be void ab initio.
It will be considered as if it was non-existent and if the word 'void' in the latter part of Clause (2) is read in the context of the preceding parts of the said clause that word should be, in Clause (2), given a meaning different from that given to it in Clause (1). In our opinion this contention cannot be accepted. After the Constitution came into force and fundamental rights had been conferred under Part III of the Constitution the Constitution had to make provision for the effect of the constitutional guarantees in regard to fundamental rights in the event there was anything in those laws which offended against such guarantee and further the Constitution had to provide for the effect of the fundamental rights on enactments which were to be enacted subsequent to the coming into force of the Constitution. These were two different situations against which the Constitution had to provide.
Naturally therefore, the framers of the Constitution had to employ different language in the two clauses of Article 13. But the effect of Part III of the Constitution on the two clauses of enactments made by the Legislature was not necessarily different. In Clause (2) of Article 13 after having provided that the State shall not make any law which takes away or abridges the rights conferred by Part III the Constitution further lays down the consequences of the violation of the injunction which was that 'to the extent of the contravention the law was to be void.'
In Clause (1) of Article 13 the existing law was void to the extent of inconsistency. In Clause (2) of Article 13 the law subsequently made was void to the extent of contravention. But it cannot be said that the context of Clause (2) of Article 13 justifies our giving a different meaning to the word 'void' from that given to it in Article 13(1). As has been pointed out in Bhikaji Narain's case (C) the words 'void to the extent of inconsistency' in Article 13 necessarily mean that the legislation inconsistent with the provisions of Part III cannot be regarded as non-existent.
It is a perfectly valid piece of legislation so far as it affects the rights of non-citizens and so far as it affects the pre-Constitution rights and liabilities. On the same principle the law enacted subsequent to the coming into force of the Constitution is void to the extent of the contravention which only means that it is valid law so far as it affects the rights of a non-citizen. So far as it affects the fundamental rights guaranteed to a citizen it is a law which is unenforceable and is as such void.
As observed in Bhikaji Naraia's case (C) the shadow which had been cast on the legislation on account of Article 13 of the Constitution, when the Act was passed, so far as the rights of the citizens were concerned was removed as soon as the Constitution (Fourth Amendment) Act, came into force. Dealing with Article 13(1) of the Constitution it was also emphasised that the very purpose of Article 13 is to render existing law void to the extent of the inconsistency which necessarily pre-supposes the existence of such a law and consequently the word 'void' in Clause (1) cannot be regarded as rendering a law nonexistent.
To our mind the same reasoning can be applied to the provisions of Article 13(2) of the Constitution. There also the words are that 'any law made in contravention of this clause shall to the extent of the contravention be void'. These words pre-suppose the making of a law which becomes void. It contemplates the case where a law may be made by a Legislature and such a law when made to the extent of contravention will be void. It cannot, therefore, be argued that any such law made should be regarded as non-existent and therefore it is open to the State to justify a law at the time when the petitioner is seeking to enforce his fundamental right on the ground that on that date no fundamental right existed which made such a law void.
17. It was then argued by the counsel for the petitioner that in Bhikaji Narain's case (C) the Supreme Court was dealing with the pre-Constitution Laws while in the earlier case of Behram Khurshed Pesikaka v. The State of Bombay (D) it was held by the Supreme Court that the cases of post-Constitution laws were different from the pre-Constitution laws. In order to appreciate this point it is necessary to refer to the earlier cases and if it is established that their Lordships of the Supreme Court in the earlier cases held that the cases under Clause (2) stood on a different footing from those in Clause (1), so far as the effect of a subsequent amendment of the Constitution is concerned, we will be bound by those decisions.
18. Mr. Pathak referred to certain observations of Mahajan C. J., who delivered the majority judgment in the case of 0065/1954 : 1955CriLJ215 which is as follows, in support of his contention:--
'We think that it is not a correct proposition that constitutional provisions in Part III of our Constitution merely operate as a check on the exercise of legislative power. It is axiomatic that when the law-making power of a State is restricted by a written fundamental law then any law enacted and opposed to the fundamental law is in excess of the legislative authority and is thus a nullity. Both these declarations of un-constitutionality go to the root of the power itself and there is no real distinction between them. They represent but two aspects of wantof legislative power. The legislative power of Parliament and the State Legislatures as conferred by Articles 245 and 246 of the Constitution stands curtailed by the fundamental rights chapter of the Constitution.
A mere reference to the provisions of Article 13(2) and Articles 245 and 246 is sufficient to indicate that there is no competency in Parliament or a State Legislature to make a law which comes into clash with Part III of the Constitution after the coming into force of the Constitution. Article 13(2) is in these terms:--
'The State 'shall not' make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.'
'This is a clear and unequivocal mandate of the fundamental law prohibiting the State from making any laws which come into conflict with Part III of the Constitution. The authority thus conferred by Articles 245 and 246 to make laws subject wise in the different Legislatures is qualified by the declaration made in Article 13(2). That power can only be exercised subject to the prohibition contained in Article 19.
'On the construction of Article 19 there was no divergence of opinion between the majority and minority in Kesava Madhava Menon v. State of Bombay : 1951CriLJ680 . It was only on the construction of Article 13(1) that the difference arose because it was felt that that article could not retrospectively invalidate laws which when made were constitutional according to the Constitution then in force.'
19. In that case as by an earlier decision of the Supreme Court in the case of the State of Bombay v. F.N. Balsara, (AIR 1951 SC 318) (F) Clause (b) of Section 13, Bombay Prohibition Act, was declared void under Article 13(1) of the Constitution in so far as it affected the consumption or use of liquor medicinal or toilet preparations containing alcohol, the question arose as to what was the effect of such a declaration by the Supreme Court. There was some difference of opinion among the learned Judges and the case was ultimately referred to a Constitution Bench,
The majority of the Constitution Bench held that the effect of the declaration by the Supreme Court was to render a part of Section 13(b), Bombay Prohibition Act, inoperative. It was further observed by Mahajan C. J., who delivered the majority judgment, thus:
'that, the constitutional invalidity of a part of Section 13(b), Bombay Prohibition Act, having been declared by this Court, that part of the section ceased to have any legal effect in judging cases of citizens and had to be regarded as null and void in determining whether a citizen was guilty of an offence.'
In that connection dealing with the observations made by Venkatarama Ayyar, Mahajan, C. J. had made the observations quoted above. But that to our mind is not a decision or even an obiter holding that the word 'void' has to be given different meaning in Sub-clause (2) from the one given in Article 13(1) of the Constitution nor in our judgment that decision can be taken to lay down that any law enacted in contravention of the provisions of Article 13(1) of the Constitution will be regarded as nonexistent such as to require re-enactment even if the constitutional disability is subsequently removed by the Parliament by amending Article 31 itself.
20. As has been observed in Bhikaji's case (C) referred to by us earlier the problem as to what will be the effect of a subsequent constitutional amendment on an enactment, which was inconsistent with the constitutional provisions, if the amendment removed that constitutional inconsistency, were not raised decided and considered in the case of Pesikaka (D). This problem was not considered even in the case of : 1951CriLJ680 . Having considered the case law on this point we come to the conclusion that so far as the pre-Constitution Acts are concerned it has been definitely laid down by their Lordships of the Supreme Court that the true effect of Article 13(1) is to render an Act, inconsistent with a fundamental right, inoperative to the extent of the inconsistency.
It is over-shadowed by, the fundamental right and remains dormant but is not dead and when any subsequent amendment is made in the Constitution which has the effect of removing the inconsistency the Act begins once more to be operative from the date of such amendment. The only effect of not making any subsequent amendment as retrospective is that no rights and obligations could be founded on the provisions of the impugned Act from the date of the commencement of the Constitution till the date of the amendment. The question, however, is whether the same effect will follow with regard to the Acts which are void within the meaning of Article 13(2).
In the absence of any binding pronouncement by the Supreme Court to the contrary We find it difficult to hold that the word 'void' in Clause (2) of Article 13 can be given any different meaning from what has been given to it in Clause (1). We find it equally difficult to appreciate the argument of counsel for the petitioner that a distinction can be drawn as regards the effect of a subsequent amendment of the Constitution on a pre-Constitution Act which is rendered void under Article 13(1) by the coming into force of the Constitution and the Act which is void under Article 13(2) of the Constitution having been enacted after the coming in force of the Constitution.
In our opinion, therefore, it is open to the State to justify the impugned Act on the ground that in view of the amended Article 31 the deprivation of the petitioners of their rights to ply their buses in view of the notifications issued under Section 3 of the impugned Act cannot be regarded as acquisition within the meaning of said article.
21. It was then argued by the Advocate-General that even assuming that the Constitution (Fourth Amendment) Act did not apply to the present case the impugned Act has provided for compensation for the property taken possession of or acquired and has further specified the principles on which and the manner in which the compensation is to be determined. In this connection the first contention raised by the counsel for the petitioner was that Section 11 which provides for the compensation does not provide for the compensation in respect of the property which has been acquired under this Act.
It only provides for compensation for premature cancellation of permits or for curtailment of routes. It does not provide for compensation for the acquisition of the business of which the petitioner has been deprived of. Reliance was placed in this connection on certain observations in the case of : 1SCR707 . Particular attention was drawn to the following observations at p. 727 (of SCR) : (at p. 739 of AIR) :--
'One thing, however, in our opinion, has a decided bearing on the question of reasonableness and that is the immediate effect which the legislation is likely to produce. Hundreds of citizens arc earning their livelihood by carrying on this business on various routes within the State of Uttar Pradesh. Although they carry on the business only with the aid of permits, which are granted to them by the authorities under the Motor Vehicles Act, no compensation has been allowed to them under the statute.
It goes without saying that as a result of the Act they will all be deprived of the means of supporting themselves and their families and they will be left with their buses which will be of no further use to them and which they may not be able to dispose of easily or at a reasonable price.'
22. Another observation relied upon is at page 729 (of SCR) : (at p. 740 of AIR) and is as follows:--
'The fact that the buses belonging to the appellants have not been acquired by the Government is also not material. The property of a business may be both tangible and intangible. Under the statute the Government may not deprive the appellants of their buses or any other tangible property but they are depriving them of the business of running buses on hire on public roads. We think therefore that in these circumstances the legislation does conflict with the provision of Article 13(2) of the Constitution and as the requirements of that clause have not been complied with, it should be held to be invalid on that ground.'
23. Relying upon this passage it has been contended strenuously that no compensation has been provided for the deprivation of the business of running buses on hire on public routes. The only compensation provided for is for premature cancellation of permits or for curtailment of the route or routes. The Advocate-General has replied to this contention that Article 19(1)(g) guarantees a right to a citizen to practice any profession, or to carry on any occupation, trade or business.
A bus operator who plies his bus for hire carries on the business of running a stage carriage and if any law is passed which effects his right it cannot be upheld unless justified under Clause (5) of Article 19. But if the State Government acquired that right or deprives the bus owner of that right for the purposes of payment of compensation it will have to be looked into as to what is the property which the petitioner has been deprived off.
At the time when the notification was issued which had the effect of depriving the petitioner of his right the property which the petitioner possessed was a right to carry on business for the unexpired period of permit granted to him on a particular specified route and a possibility of his permit being renewed by the Transport Authorities under the provisions of the Motor Vehicles Act. If in those circumstances the legislation provides for compensation for premature cancellation of permits or for curtailment of route or routes it cannot be argued that the Legislature has not provided for payment of compensation in respect of the property which it has acquired under the impugned Act.
Further in this connection it was urged by the Advocate-General that the renewal of the permit depends upon the discretion of the Transport Authority under the Motor Vehicles Act and therefore the mere possibility of the permit being renewed cannot be regarded as property for which the petitioner can be entitled to any compensation. For this proposition reliance has been placed on the following observations of their Lordships of the Supreme Court in the case of Ram Chandra Palai v. State of Orissa : 1SCR28 :--
'It is hardly necessary for us to consider the further contention urged by the petitioners viz., that the fundamental right guaranteed under Article 19(1)(f) and under Article 13(2) had been violated. If the permits held by them under the Motor Vehicles Act, 1939, were prematurely terminated or cancelled under the provisions of Orissa Act 36 of 1947 compensation was provided by the Act itself. If there was no renewal of their permits on the expiration thereof after they had run for their normal period by virtue of the provisions of Orissa Act I of 1949, no claim could be made by them on the score of such non-renewal because renewal was not a matter of right. The Provincial Transport Authority or the Regional Transport Authority would be well within their rights to refuse such renewal having regard to the provisions of the amended Sections 47 and 55, Motor Vehicles Act, 1939, and, if at all there was any deprivation of their proprietary rights, it would be by authority of law.'
24. In our opinion this observation fully supports the contention raised by the Advocate-General. So far as the impugned Act prematurely cancelled the permits of the stage carriage permit holders and curtailed the routes compensation has admittedly been provided for under the impugned Act. So far as it gave Power to the Transport Authority not to renew the permits of the bus operators whose permits may expire the deprivation would be by authority of law and consequently the petitioner would not be entitled to any compensation for that. Apart from it as the renewal cannot be claimed as a matter of right it cannot be said that the petitioners were entitled to any compensation for that.
25. Under Schedule I of the impugned Act the compensation payable under Section 11 of the Act for the cancellation of a contract carriage or stage carriage or public carriage Permit under Clause (e) of Sub-section (1) of Section 10 of the Act is to be computed for every vehicle covered by the permit as follows, namely:--
For every complete month orpart of a month exceeding fifteen days of the unexpired period of the permit
Rupees one hundred
For part of a month notexceeding fifteen days of the unexpired period of a permit.
Provided always that the amount of compensation shall be in no case less than rupees two hundred, and the compensation payable under Section 11 for the curtailment of route or routes covered by a stage carriage or public carrier permit under Clause (d) of Sub-section (1) of Section 10 of the Act shall be an amount computed in accordance with the given formula. ......
26. The contention of the petitioner is that it only fixes an arbitrary figure of Rs. 100/- as the profit made each month by a bus operator. The word 'compensation' under Article 31 necessarily implies an idea of quid pro quo and as the Act does not provide for the payment of compensation on the basis of the actual profit made by the operators the Act does riot provide for anycompensation at all. The petitioners have placed no materials before us to show what actual profits were made by each of them and in the absence of any such evidence the figure of rupees one hundred per month taken to be the approximate profit for each month cannot be regarded as so arbitrary that it amounts to no payment of compensation.
The matter, in the absence of any evidence on behalf of the petitioners reduces itself to a question of inadequacy of consideration which to our mind cannot be determined by this Court and it cannot further be held that the Act does not provide for compensation or the principles on which the compensation is determined.
27. Lastly it was contended that the Act has provided that the displaced operators will be provided alternative routes and in case they accept any alternative route they will not be entitled to any compensation, thus the Act does not take into account the fact that the alternative route which has been provided for may not be as profitable as the route on which the operator had been running his buses. This argument to our mind ignores the fact that an option has been given to an operator to either accept the transfer of a route or to claim compensation. If a bus operator willingly accept the alternative route offered to him he cannot claim any further compensation. Moreover, it cannot be assumed at this stage that the route which would be offered to the operators will not give them an income of Rs. 100/- per month which has been taken as the basis for calculating the compensation payable for the premature cancellation of the permit. In our opinion, therefore, even if the argument of the petitioners is accepted that the amended Article 31 does not apply to the present case the impugned Act thus provides for compensation and specifies the principles on which such compensation can be determined.
28. The next point to be considered is whether the impugned Act conflicts with the guarantee of freedom of inter-State and intra-State trade commerce and intercourse provided for by Article 301 of the Constitution. In the case of Saghir Ahmad v. State of U. P. (A) this Court had negatived the contention of the operators on this point pn the ground that Article 301 of the Constitution did not apply to the case.
'Article 301' in view of this Court 'provides safeguards for carrying on trade as a whole as distinguished from the rights of an individual to carry it on. In other words, this article is concerned with the passage of commodities or persons either within or outside the State frontiers but not directly with individuals carrying on commerce or trade. The right of individuals, It was said, was dealt with under Article 19(1)(g) of the Constitution and the two articles have been framed in order to secure two different objects.'
The Supreme Court, however, in appeal left this question open and did not finally decide the question whether Article 301 dealt with the individual rights or not. Article 301 provides that:
'Subject to the other provisions of this Part, trade, commerce and intercourse throughout the territory of India shall be free.'
29. Article 302 gives power to the Parliament by law to impose such restrictions on the freedom of trade, commerce or intercourse between the State and another or within any part of the territory of India as may be required in the public interest. Article 303 provides for the restrictions on the legislative powers with regard to trade, commerce and inter-course and Article 304 provides for restrictions on trade, commerce and intercourse among States. Article 305 provides that nothing in Articles 301 and 303 shall affect the provisions of any existing law. By the Constitution (Fourh Amendment) Act, 1955, Article 305 of the Constitution was amended and the amended clause reads as follows:--
'Nothing in Articles 301 and 303 shall affect the provisions of any existing law except in so far as the President may by order otherwise direct; and nothing in Article 301 shall affect the operation of any law made before the commencement of the Constitution (Fourth Amendment) Act 1955 in so far as it relates to, or Prevent Parliament or the Legislature of the State from making any law relating to any such matter as is referred to in Sub-clause (ii) of Clause (6) of Article 19.'
30. This amendment to our mind is a complete answer to the argument of the petitioner as regards the infringement of Article 301 of the Constitution. The impugned law relates to the matter referred to in Sub-clause (ii) of Clause (6) of Article 19 and as such nothing in Article 301 would affect the operation of any such law made even before the commencement of the Constitution (Fourth Amendment) Act, 1955. In this view of the matter it is not necessary to decide whether Article 301 of the Constitution deals with the individual rights to carry on freedom or only the free passage of persons or goods within or without a State.
Another controversy was raised between the parties on the question as to when the sanction of the President had been obtained in this case. Article 304 as we have pointed out gives power to the State Legislature to place certain restrictions on trade and commerce or intercourse with or within the State as may be required in the public interest. The Proviso to Article 304 provides that no Bill or amendment for the purposes of Clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President.
31. The contention of the petitioner was that in the present case no proper sanction had been given by the President before the Bill had been introduced in the Legislature. The State in this connection relied upon Article 255 of the Constitution which provides that no Act of Parliament or of the Legislature of a State shall be invalid by reason only that some recommendation or previous sanction required by this Constitution was not given if the assent to that Act was given by the President. The State has further stated in the counter-affidavit that necessary sanction had been obtained prior to the introduction of the Bill in the Legislature. It is not necessary for us to decide this question in view of our holding that amended Article 305 of the Constitution completely protects the present legislation as against the infringement, if any of the guarantee under Article 301 of the Constitution.
32. The next point urged by the petitioner is that the present legislation is hit by Article 14 of the Constitution. Counsel for the petitioners have raised a three-fold contention on this point. It was firstly argued that it is not open to the Legislature to discriminate in favour of the State as against private individuals in the matter of carrying on business of plying buses for hire on public routes. The argument in substance is that the present Act is a discriminatory legislation inasmuch as it discriminates in favour of the State.
The State, as a person, when it enters into competition with a private individual and carries on trade occupies the same position as a private trader does and in those circumstances itcannot be made subject of favourable legislation. Similar contention was repelled by the Supreme Court in the case of Saghir Ahmad v. State of U. P. (A) and it will be sufficient to refer to the following observations of Mukherjea, J. in that case:
'So far as the first ground is concerned, it is well settled that mere differentiation does not make a legislation obnoxious to the equal protection clause. The Legislature has always the power to make classification and all that is necessary is that the classification should not be arbitrary but must bear a reasonable relation to the object which the legislation has in view. There is no doubt that classification is inherent in the concept of a monopoly and if the object of legislation is to create monopoly in favour of the State with regard to a particular business, obviously the State cannot but be differentiated from ordinary citizens and placed in a separate category so far as the running of the business is concerned and this classification would have a perfectly rational relation to the object of the statute.'
33. The State, therefore forms a reasonable classification and cannot but be differentiated from ordinary citizens and placed in a separate category so far as the running of the business is concerned and this classification would have a perfectly rational relation to the object of the statute.
34. The next point urged in this connection was that the Act gives an unguided and unfettered discretion to the State to associate such persons as it likes in the transport business and thereby allows it to discriminate between one citizen and another. No rules are laid down to regulate the choice of the State in such cases. This point was also considered and repelled in Saghir Ahmad's case (A) and it will again be sufficient to refer to the following observations of the Supreme Court in this connection:--
'Section 3 of the Act authorises the State Government to declare that the road transport service in general or on particular routes should be run and operated by the State Government exclusively or by the State Government in conjunction with railway or partly by the State Government and partly by others in accordance with the provisions of the Act, The whole question is how is the last part of the section to be implemented and carried out?
If the State can choose any and every person it likes for the purpose of being associated with the transport service and there are no rules to guide its discretion, plainly the provision would offend against Article 14 of the Constitution. The learned Advocate-General pointed out however that the State is only to choose the routes or portions of routes on which the private citizens would be allowed to operate and the number of persons to whom permits should be given, and that the granting of permits would necessarily be regulated by the provisions of Motor Vehicles Act.
This does not appear to us to be an unreasonable construction to be put upon the relevant portion of Section 3 of the Act and it receives support from what is laid down in Section 7(c) of the Act. On this construction the discretion to be exercised by the State would be a regulated discretion guided by statutory rules.'
35. Nothing has been pointed out In the present Section 3 and the scheme of the Act to cometo a contrary conclusion. Under the Act the State having decided to run on certain route buses along with private operators the grant of permit to those private operators shall still be governed by the provisions of the Motor Vehicles Act.
36. A new contention, however, has been raised by the counsel for the petitioner in this connection which does not appear to have been canvassed before the Supreme Court in the earlier case. The argument of the petitioner is that under Section 3 an unguided discretion has been given to the State Government to pick and choose any particular route on which it may wish to operate exclusively or along with other private operators.
The result of giving this unfettered discretion to the Stats Government is to bring about the situation where the operators who are operating on the route which is taken over by the State are treated differently from those who are operating on the routes which the Government does not take up. It is clear that the Act does not discriminate between various operators operating on a particular route which it decides to take over. The rights of all the bus operators operating on that particular route are in fact acquired by the State.
The differentiation is brought about between the operators plying their buses on the routes which have been acquired by the State and those operating on other routes by the effect of the legislation. That to our mind does not amount to an abridgment of any fundamental right. The Act if it is justified under Article 14 on the ground of a reasonable classification inasmuch as the State can reasonably form a separate category having regard to the object of the Act, it cannot be held to be void on the ground that if the State chooses to select a particular route and as a result of that selection the operators of that route are affected by the provisions of the Act, the Act is discriminatory.
If the State can form a reasonable classification for favourable legislation the operators operating on that particular route can also be regarded as a separate category by themselves which can be made subject of the special legislation. In the case of : 1SCR28 the Supreme Court dealt with a similar question and repelled the contention that the Act was void as being in contravention of Article 14 of the Constitution. In that case provisions of the Orissa Act 36 of 1947 and Orissa Act I of 1949 were challenged.
The effect of the passing of the two Acts was that the rights and liabilities of the operators in different areas were differently regulated, The provisions of the impugned Act, were attacked on the ground that there was discrimination in favour of the State Transport Service and the Orissa Road Transport Co, Ltd. It was further argued that the State could not discriminate against persons in its own favour as well as in favour of the Joint-Stock Company formed for carrying on motor transport business as that would be a negation of equality guaranteed under Article 14 of the Constitution.
It was also urged that zonal and territorial discrimination in the application of the impugned Acts arbitrarily offended against Article 14 of the Constitution. Dealing with the second point on which the validity of the Act had been challenged the argument was put forward in the following words at pp. 36-40 (of SCR) : (at pp. 302-304 of AIR):--
'It was also pointed out that the State Government had arbitrarily and without any rational basis selected certain districts like Ganjam and Puri and parts of Cuttack District for starting the Orissa Road Transport' Co. Ltd....... Theprovisions of both the Acts being materially different as set out above the application of one Act to particular districts of the State and of the other Act to other districts of the State was violative of the guarantee of equal protection of laws enshrined in Article 14 of the Constitution... ....What was essential was that, as betweenthe owners of stage carriage services operating on a particular route or in a particular area, no discrimination should be made and all should be treated alike.
If each one of such owners had the same Act applied to them they could not be heard to complain about any discrimination. They formed a separate group or class by themselves to be treated in a particular manner having regard to the exigencies of the situation and the Government was the best judge of the circumstances which obtained within the particular locality which necessitated the application of one Act or the other for the implementation of the scheme..... ......
A further argument which was addressed before us on behalf of the petitioners may be noted here and it was that Orissa Act I of 1949 had been applied to some of them and that Act provided for no compensation to be given to them as in the case of those owners of stage carriage services to whom Orissa Act XXXVI of 1947 had been applied. That, it was contended, was discriminatory as between the several owners of stage carriage services and thus violated Article 14 of the Constitution.
This argument however, ignores the fact that under Orissa Act XXXVI of 1947, the permits issued or renewed in favour of the owners of stage carriage services by the Provincial Transport Authority or the Regional Transport Authority cease to be operative or are cancelled by the Provincial Government as the case may be and compensation is given to such permit holders for such premature termination or cancellation of their permits. The owners of stage carriage services to whom Orissa Act I of 1949 is applied stand, however, on a different footing.
Their permits continue for the normal period and the considerations which are laid down in Clauses (f) and (g) which have been thereby added to Sections 47 and 55 of the Motor Vehicles Act, 1939, would come into play when these permits which have expired by lapse of time come to be considered for renewal on applications made by permit holders in that behalf ................
There is no question, therefore, of any discrimination between these two classes or groups of permit holders and it cannot be validly urged that the provisions of the impugned Acts in so far as they applied to different classes or groups of permit holders are in any manner violative of the fundamental right embodied in Article 14 of the Constitution.'
37. AS we have already pointed out earlier once it is accepted that the State and operators who were operating on the route on which the State notifies to operate alone from a separate and distinct category from those who are operating on the other routes, having regard to the object of the Act, it cannot be said that the Actwhich brings about such a result is nit by Article 14 of the Constitution.
38. The last point which was urged by the petitioners was that Section 3 permits delegation of essential legislative function and is thus invalid. In this connection it is not necessary, to refer to a large number of cases on the point. There is not much controversy with regard to the principles on which delegated legislations have been held to be invalid. The difficulty arises in applying those principles to the particular set of facts. Mr. Pathak has referred to the following passage in the case of Harishankar Bagla v. State of Madhya Pradesh : 1954CriLJ1322 :--
'The Legislature cannot delegate its function of laying down legislative policy in respect of a measure and its formulation as a rule of conduct. The Legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law.'
39. Relying upon this he argued that in the present case Section 3 does not lay down any rule of conduct or any standard on which the State Government has to act and as such it is not within the permissible limits of delegated legislation. The majority decision in the case of Constitution of India and Delhi Laws Act (1912) etc., In re, 1951 SCR 747 : (AIR 1951 SC 332) (I) has fully laid down the limits of permissible delegation of legislative power. It is not open to Legislature to delegate its essential legislative functions to an Executive. The American Courts have based this on the doctrine of the separation of power and have justified the power to frame rules and regulations on the ground that they are subordinate pieces of legislation.
Section 3 in our opinion fully lays down the standard and the policy for the guidance of the State Government. The power to declare that a particular route will be taken over by the State Government is to be exercised by the State Government if it is of the opinion that it is necessary in the interest of the general public and for subserving the common good or for maintaining and developing efficient road transport system so to direct and it cannot therefore be argued that the legislative policy has not been laid down in the Act. The essential function of the Legislature of laying down policy and the rule of conduct for the delegate has been fully set out in this section.
The principles are clear and offer sufficient guidance to the State Government in exercising its powers under Section 3. A number of instances may be found where similar pieces of legislation have been upheld. Reference may be made to the Full Bench decision of this Court in Basti Sugar Mills Co. Ltd. v The State : (1954)IILLJ279All .
40. It was then argued by Mr. Pathak that an arbitrary power has been given to the Government to take over any particular route which it likes to run exclusively. This power necessarily implies a power to classify for the purposes of special legislation and it is therefore delegating a legislative function. In dealing with Article 14 we have already observed that the power by which the State Government can take over any particular route and refuse to take other is not an unreasonable classification having regard to the object of this enactment and if such a classification is brought about by the Legislatureitself no essential legislative function has been delegated to the State Government.
We are, therefore, of opinion that Section 3 is not void on account of going beyond the provisions of permissible delegation. In the result, therefore, we are of the opinion that the U. P. Road Transport Services (Development) Act of 1955 (U. P. Act No. IX of 1955) is a valid piece of legislation.
41. A number of points were raised in each of the cases by the counsel and it would be convenient if all these points are dealt with in one petition. Mr. Dwivedi, who appeared for some of the bus operators, in one of the petitions had challenged the validity of the Act on the grounds which we have already dealt with. He had a, permit for plying his buses on a route on which some of the bus operators, who were running their buses under a permit on the routes which have been taken over were transferred. Under Section 4 after the publication of notification under Section 3 the State Government or the Transport Commissioner, if so directed, could publish, in such manner as may be specified, a scheme as to the State Road Transport Service framed in pursuance of the declaration under Section 3. The scheme could provide for cancellation or the modification of existing permits granted under Ch. V of the Motor Vehicles Act. It could also provide for the curtailment of the routes or transfer of a permit from one route to another. It was in view of this provision that in the scheme which was finally published under Section 8 it was provided that some operators on the routes which were taken over were to be transferred to the route on which the petitioner was running his buses. A preliminary objection had been taken by the State Government that the right of the petitioner had not so, far been affected and consequently the petitioner could not come to this Court under Article 226 of the Constitution.
Section 10 of the Act provides for the consequences which were to follow the declaration under Section 3 and the publication of the scheme and Sub-section (2) of the said section provides that any permit transferred under and in pursuance of Clause (d) of Sub-section (1) shall be deemed to be and have effect as though It were a permit granted under Ch. IV of the Motor Vehicles Act, 1939, for the remainder of the period of its validity. The consequence under Clause (d) of Section 10 is that the State Government or any officer or authority empowered by it in this behalf may, in the manner prescribed cancel any permit or transfer a permit to any other route or direct that any permit or class of permits shall not be renewed or shall not be effective beyond such date as may be specified or reduce or curtail the number of vehicles or routes covered by any permit or alter the conditions attached to any permit granted under Oh. IV of the Motor Vehicles Act. So far no transfer has been ordered under Section 10 (d) and unless that is done the right of the petitioner cannot be affected. Mr. Dwivedi realised that and has asked for the withdrawal of his writ petition, In view of the above observations, the petition is rejected.
42. Mr. Pathak, who appeared in petition No. 1818 of 1956, has contended that the power which has been given to transfer the permit of operators who were operating on the routes taken over by the State to other routes is illegal inasmuch as, this power is capable of being exercised arbitrarily and without regard to the fact that on the route to which these permits are transferred may be already having sufficient number of operators & the transfer may prove to be uneconomical for the operators who are already plying on those routes. It was then contended by him that no compensation has been provided for the loss which an operator may have to suffer by the transfer of his permit to another route. To what extent the absence of any such provision in the Act will affect the constitutionality of the Act has already been discussed by us when dealing with the constitutionality of the Act. As regards the argument that the power given is in very wide terms & it is liable to be arbitrarily used without having regard to the fact that it may affect the profits of the operators who are already plying on the routes to which the permits of the displaced operators may be transferred, it is enough to point out that under Section 4 Sub-section (4) it has been provided that in providing for the transfer of permits to other routes under Clause (i) of Sub-section (2), regard shall be had to the provisions of Sub-section (1) of Section 47 or of Sub-section (1) of Section 65 of the Motor Vehicles Act. In view of this provision it cannot be said that an arbitrary power of transfer of permits has been given. While making such an order of transfer of permits to other routes regard will be had to the provisions of Section 47 of the Motor Vehicles Act. The transfer will thus have to be made having regard to the transport facilities on the routes on which the permits are to be transferred.
43. It was then contended by Mr. Pathak that in the present case no regard in fact was given to the considerations mentioned under Section 47 and therefore the order of transfer of permits should be cancelled. It is not incumbent on, the permit-holders whose permits have been transferred to other routes to accept that transfer. In case they accept the transfer they would be deprived of the compensation and if that transfer results in violation of any provisions of Section 47 of the Motor Vehicles Act it is open to the operators on those routes to take necessary action under the provisions of the Motor Vehicles Act. It cannot be said that the provisions of the Act which provide for such a transfer are 'ultra vires' or that, in these proceedings, any part of the scheme which provides for the transfer can be declared illegal on that ground.
44. Mr. Kackar who appeared for a large number of petitioners, challenged the notifications on the ground that the notification under, Section 8 changed the date of the operation of the scheme from what was given in the notification issued under Section 4. The notification under Section 4 has to provide for the date from which the scheme has to take effect. After the scheme has been published under Section 4, under Section 6, any person whose interests are affected may within 30 days of the publication of the scheme file objections before the Transport Commissioner which has then to be sent to the Board constituted under Section 7 for consideration. Thereafter, an amended, modified or altered scheme has to be published in the Gazette. Any scheme published under Section 8 may at any time be cancelled, altered or modified by the Government. The final scheme therefore, which is published under Section 8 cannot be held to be illegal only on the ground that it had modified or altered the date from which the scheme was to be operative as given in the scheme published under Section 4.
45. Mr. Khare appeared for another group of petitioners and has raised certain other points on which he challenged the notifications under Section 8 of the Act. It was firstly contended by him that no regard had been paid to the considerations mentioned in Section 47 of the Motor Vehicles Act when transferring certain permits to other routes. As we have already dealt with, this question in connection with the petitions argued by Mr. R.S. Pathak it is not necessary to deal with it again. It was contended by Mr. Khare that notification under Section 4 was not signed by the Secretary of the Government and has not been authenticated under Article 166 of the Constitution and secondly he contended that Section 4 required publication in the manner as may be prescribed and the manner of the publication prescribed is the publication in the Hindi Gazette. There was some difference in the publication as appearing in the English Gazette and that appearing in the Hindi Gazette. We do not think that there has been any non-compliance with the provisions of Section 4 & the rules prescribed for the publication in this case. As regards the absence of the signature of the Secretary on the notification, Section 4 provides for the publication of the scheme by the State Government or if the State Government so directs by the Transport Commissioner in the manner prescribed. Nothing has been pointed out to show that there was non-compliance of the provisions of Section 4 in that respect. Article 166 of the Constitution provides that :
(1) All executive action of the Government of State shall be expressed to be taken in the name of the Governor.
(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.'
This Article, which deals with the executive action of Government, does not apply to the present case where the notification was published under Section 4 of the Act.
46. It was then contended by Mr. Khare that some of the petitioners were allowed to continue plying their buses on the routes during the pendency of the appeal before the Supreme Court against the order of this Court declaring the State Road Transport Act, 1950 valid, and no provision has been made in the present Act by which the right which they had acquired under the permits granted to them to run their stage carriages had been taken over. Reliance was placed on Section 20(2)(a) of the present Act which provides that any State Road Transport Service or order referred to in Clause (a) of Sub-section (1) of Section 13 of the said Act shall not be prejudiced or affected by this Act and shall continue to be valid in law as if the said Act has not been repealed. Section 13(1)(a) of the State Road Transport Act, 1950 provides that:--
(i) State Road Transport Service commenced before the appointed date and operating on any route at such date, and
(ii) Order cancelling or curtailing any permit for transport vehicle, or attaching any new condition or altering the conditions already attached to any permit for such vehicle, and every order refusing or otherwise fixing the number of transport vehicles to be used on any route or changing the route relating to the permit, on or before the appointed date on account of the State Road Transport Service running and operating or commencing to run and operate on the route to which the permit related, shall be and is hereby made and declared to be valid in law........'
47. It is argued that the order under which they were allowed to ply their buses was in effect an order under Section 13(1)(a)(ii) which by virtue of Section 20(2)(a) of the Act would be deemed to be valid in law and therefore the petitioners cannot be prohibited from plying their buses on those routes on which they are actually plying their buses. This argument to our minds is untenable. Firstly it cannot be said that the order by which the petitioners were permitted to ply their buses during the continuance of the appeal can be treated as an order within the meaning of Section 13(1)(a)(ii) of the State Road Transport Act, arid secondly, in view of the provisions of Section 19 and Section 20(2)(b) of the impugned Act the order will be deemed to have been passed under the corresponding section of the present Act.
48. Lastly, it was urged by Mr. Khare that no sufficient opportunity was given to the petitioner to object to the transfer of the routes of the permits. Some of the petitioners are those who were plying their buses on the routes to which permits of others have now been transferred. It is stated in the affidavit filed by his clients that notices under Section 5 of the impugned Act were received by them on 12-11-1955, and objections were sent by them on 6-12-1955 by registered post to the Transport Commissioner, Uttar Pradesh, Lucknow. Objections were sent with regard to each permit. A notice dated 23-12-1955 was received under the signature of the Assistant Transport Commissioner intimating the applicant that his objection shall be heard by a Board on 2-1-1956 at 10-30 a.m. in the Secretariat U. P. Lucknow. On 27-12-1955 the petitioners wrote to the Transport Commissioner that as 2-1-1958 had been declared a Public Holiday, he should be informed of the next date on which the objection will be heard. In reply to that letter the applicant received a telegram from the Transport Commissioner dated 30-12-1955 that in spite of holidays, the objection will be heard on that date. On that date the petitioner was present at the time of hearing of the objection.
The Board heard objections relating to other regions. When the matter of Agra region was taken up, in which region the route of the petitioner lay there was general consensus of opinion that Agra region had already been sufficiently nationalised and therefore the Board did not take for consideration objections relating to the Agra region. There was no indication given that it was to be considered on any subsequent date nor was any date fixed at that time nor any intimation was sent to the applicant about it later. The applicant was never informed that the Board was to consider the matter of the Agra region or was to decide his objection to the scheme. The notification' under Section 8 of the impugned Act dated 20-6-1956 was published in the U.P. Gazette of 23-6-1956 which made the scheme final. As no opportunity was given to the petitioner to be heard the scheme should be quashed. To support this contention two-fold grounds were urged. Firstly it was urged that as the Act does not provide for any objection to be made by the operators on whose routes the permits are transferred of these operators whose routes are taken over before final scheme is published under Section 8, any scheme published under Section 8 should be quashed on that ground. We do not think there is any force in this contention. As soon as the scheme under Section 4 is published and it is given out in that scheme that some of permit holders' permits may be transferred to other routes it is open to the persons who are operating on the other routes to come and object to such a grant if they so desired under Section 6 of the Act and it cannot be said that the Act does not provide for any such opportunity.
49. The next point which was urged was that the order of 2-6-1956 was passed in the absence ofthe petitioner and as no opportunity was givento the petitioner to object the proposed finalscheme, the scheme which was ultimately publishedunder Section 8 should be quashed. In cases where thecomplaint is that the permits of those operatorswho have been displaced is transferred to theroutes on which the petitioners are operating andsuch a transfer is uneconomical and illegal thepetitioners will have an opportunity to bring thatfact to the notice of the transport authoritiesunder the provisions of the Motor Vehicles Act.In cases where the petitioners' permits have beentransferred to some other routes and the petitionersintended to raise objection to such a transfer ifthey are dissatisfied and are of opinion that thetransfer to those particular routes will prove uneconomical for them it is open to them not to accept such a transfer and claim compensation butit cannot be said that the final scheme publishedin these circumstances was 'ultra vires' and shouldbe quashed. There is, therefore, no force in thispetition and it is accordingly rejected but we makeno orders as to costs.