1. This is an application under Article 226 of the Constitution of India by the Chamba Valley Transport Limited for enforcement against the respondent, the State of Himachal Pradesh, of the fundamental right to carry on business guaranteed by Article 19 (g).
2. The Company came into being before the inauguration of Himachal Pradesh under an agreement with the former Hill State of Chamba, and was plying transport vehicles on hire between Chamba and Bannikhet on 5-year permits, which were to expire on 31-7-1952, until stopped from doing so on and from 30-9-1949 by a notice, dated 10-9-1949, from the Deputy Commissioner of Chamba prohibiting the Company from running the motor service because the administration had decided to nationalise transport in the State.
3. It will be noticed that the Company carried on its business for about a year and a half after the integration of the Hill States into Himachal Pradesh before it was stopped by the respondent. The respondent was a shareholder in the Company and had two persons, the Deputy Commissioner of Chamba and one Mehta Autar Chand, as its nominees on the directorate of the Company. After stoppage of their business, and in response to an offer contained in the said notice, the petitioner Company sold their stock-in-trade to the respondent, and, at a cost of over a lac of rupees, the latter nationalised transport in the State and began to run vehicles of their own. After several unsuccessful demands, the last dated 8-11-1950, when representatives of the Company are alleged to have waited on the Development Secretary, the present petition was filed on 1-12-1950.
4. Basing its title on the contract with the respondent's predecessor, the State of Chamba, on the unexpired 5-year permits and on infringement of its aforesaid fundamental right, the petitioner Company prays for issue to the respondent directions, orders or writs in the nature of 'mandamus,' prohibition, 'quo warranto', or any of them, directing the respondent
'(a) to discontinue to ply transport vehicles on hire between Chamba and Bannikhet,
(b) to allow the petitioners to ply their transport vehicles on hire for the period provided in their agreement; and
(c) to compensate the petitioners for the loss of income and damages already sustained by them, and which they will continue to suiter till they are permitted to ply their vehicles, as they had been doing upto 30th September 1949;
and for the grant of such other relief as may be just and expedient.
5. The petition has been opposed by the respondent on various grounds, to be referred to presently. In the course of arguments the learned counsel for the petitioner gave up his stand on the contract and the 5-year permits and confined himself to the infringement of the fundamental right of the petitioner, and the learned Government Advocate admitted that running of transport by the petitioner Company was not stopped under any provision of the Motor Vehicles Act.
6. In view of these concessions by learned counsel the disposal of this case lies within a much shorter compass. Only questions relating to the fundamental right arise for determination, but not those relating to ' contract or permits.
Certain arguments put forward by learned counsel, despite the aforesaid concessions, therefore, become irrelevent, and they will not be adjudicated upon. These were: that it was open to the present Government riot to recognise the ante-cession Tight based on contract between the petitioner and the former State of Chamba -- ('Secretary of State v. Bai Bajbai', AIR 1915 P. C, 59); that the issue or refusal of permits is solely within the discretion of the transport authorities and it is not a matter of right enforceable by issue of a writ under Article 226 of the Constitution -- 'G. Veerappa Pillai v. Baman and Raman Ltd., AIR 1952 S. C. 192'; that the grantor of the licence (Chamba State) having transferred the property affected thereby (the Chamba-Bannikhet road), the transferee (the respondent) is not, as such, bound by the licence (the 5-year permits), under Section 59 of the Easements Act, 1882; that the petitioner Company having already sold its vehicles to the respondent, it was not entitled to ply transport on unexpired permits relating to those vehicles; and that the permits have in any case now expired on 31-7-1952.
7. There are two contentions, put forward on behalf of the respondent, which may be taken up first and together. They may be taken, up together because the fallacy underlying both proceeds from a single source: misconception of the right propounded by the petitioner. And they may be taken up first, because the removal of that misconception by clarification of the essentials of the said right will also establish the title on which the petitioner seeks redress in this Court. The two contentions are: (1) that by sale, after receipt of the said notice, of its stock-in-trade to the respondent the petitioner has consented to and acquiesced in the situation which it now seeks to unsettle by preferment of the present petition, and (2) that the provisions of Article 19 not being retrospective, they cannot revivify a right which had been put an end to prior to the commencement of the Constitution on 26-1-1950.
8. The first contention was met by the petitioner by making reference to its correspondence with the respondent which, according to it, showed that the sale was made specifically 'without prejudice' to the future rights of the petitioner. This was countered by the argument that the endorsement 'without prejudice' had reference only to the transaction of sale, and that, so far as the carrying on of the motor transport business is concerned, the petitioner never protested against its stoppage by the said notice of the respondent.
As regards the second of the above two contentions, learned counsel for the petitioner pleaded that not the petitioner's right but only its exercise was terminated, and that the respondent only scotched the right, not killed it, and so the right survived the commencement of the Constitution.
And he supported his argument by citation of -- 'Harendranath v. State of Madhya Bharat', AIR 1950 Madh. B. 46, and -- 'Jeshingbhai v. Emperor', AIR 1950 Bom. 363. The learned Government Advocate cited -- 'Janardhan Reddy v. State of Hyderabad', AIR 1051 S. C. 217, and--'Mahamad Beary v. T. Hassan Kutty', AIR 1951 Mad. 280, as rulings of 'countervailing weight supporting the said contention'. It may be stated here at once that the Madhya Bharat ruling cited by the learned counsel for the petitioner and both of those cited by the learned Government Advocate are irrelevant here since in none of them did the question of retrospective application of a fundamental right arise. The Bombay ruling supports my view, as I shall presently show, though it does not (support?) the arguments as put forward on behalf of toe petitioner.
9. A legal right has been defined by Salmond (Jurisprudence, 1947 edition, page 230) as an interest recognised and protected by a rule of legal justice and by Laski (A Grammar of politics, April 1931 edition, page 90) as a claim recognised by the State. Recognition by the State is therefore a 'sine qua non' of a human claim or interest becoming a legal right. The rights clauses were there in the Constitution of the United States of America since 1791 to be looked up to and be aspired for, but, so far as the people of this country are concerned, they were able to give unto themselves the seven rights to freedom mentioned in Article 19 only with effect from the commencement of our Constitution on 26-1-1950.
Taking for instance the particular right sought to be enforced in the instant case, the right to practise a profession, or to carry on an occupation trade or business, though protected to a certain extent by a system of licenses, was not recognised as a fundamental right an infringement of which could be appealed against on the ground of restriction-beyond-constitutional limits. The reliefs which were sought and obtained in cases like -- 'Chintanianrao v. the State of Madhya Pradesh', 1950 S. C. R., 759, or in -- 'Rashid Ahmad v. Municipal Board Kairana', 1950 S. C. R., 566, were in consequence not possible, in fact undreamt of, prior to that date. In short, the right in question, was, prior to that date, simply non este. There could, therefore, be no question of its ante-Constitution infringement or petitioner's acquiescence in: the infringement.
For the same reason, there could also be no question of retrospective application of the provisions of Article 19 of the Constitution. The right in question became exercisable as soon as it assumed the badge of a legal right by being recognised by the State in our Constitution, irrespective of whether the act which gave cause to the exercise of the right was performed before or after the birth of the right. Or, borrowing with respect the reasoning of Chagla, C. J., in the aforesaid ruling, -- 'Jeshingbhai v. Emperor', AIR 1950 Bom. 363 (at 386, first column), what the petitioner is doing by the present petition is not so much the challenging of the act of the respondent in stopping the carrying on of the petitioner's business as the assertion of a fundamental right granted to the petitioner since 28-1-1950.
10. From the arguments had before me the questions that remain to be determined are: (1) Whether the petitioner has the legal right claimed by it? (2) If so, has there been an infringement of the right? (3) If the answers to the foregoing questions be in the affirmative, whether the petitioner (a) has no right to move this Court for a prerogative writ because it had other adequate remedy available to it, or (b) has lost the right to relief for laches or for not coming with clean hands, or (c) has, in any case, no right to relief because performance of no public duty is sought to be compelled? and (4) If all the above findings be in favour of the petitioner, what is the appropriate relief that can be granted to it?
11. As regards the first point, admittedly the petitioner is a transport company which was plying buses on hire on the route in question until stopped by the respondent from doing so by a notice dated 10-9-1949. The petitioner is therefore seeking to enforce the right for itself and not for anybody else, and it makes no difference that it is an incorporated Company. -- 'Charanjitlal v. Union of India', 1950 S. C. B. 869.
12. Coming to the second point, the respondent's notice dated 10-9-1949 which compelled the petitioner to stop carrying on its business was as follows:
The Deputy Commissioner,
Chamba District Chamba.
The Managing Director,
Chamba Valley Transport Co. Ltd.
As the Administration has decided to nationalise transport in Himachal Pradesh, your company cannot now be allowed to run a motor service even between Bani Khet and Chamba. I, therefore, serve you with this notice that the transport on this route is being nationalised and that no private operator or company will be allowed to run stage carriages, contract carriages or public carriers on this route. The General Manager, Transport will arrange to run a regular motor service between Bani Khet and Chamba within a fortnight or so. If your company wants to sell its vehicles or other assets, the Transport Department will be prepared to consider the offer but only on rates laid down in the white paper, extracts from which are enclosed.
You are also informed that until the Transport Department can place new Vehicles, they will also be prepared to obtain the vehicles of private operators on hire on the same terms as are being offered to other operators in Himachal Pradesh. Your company can negotiate to the General Manager Transport and find out the detailed terms.
10th September, 1949. Chamba District, Chamba.'
It is clear therefore that the Himachal Pradesh administration stopped the petitioner's business because it had decided to nationalise transport. Now, prior to the amendment, amongst others, of the restriction Clause (6) of Article 19 by Section 3 of the Constitution (First Amendment) Act, 1951, it would have been within the scope of judicial review as to whether a restriction on the exercise of the fundamental right of carrying on a trade or business on the ground of nationalisation of the trade or business in question would be a reasonable restriction in the interests of the general public.
But nationalisation has been put beyond the pale of judicial interference by the said amendment laying down that protection of the right in question does not affect the operation of any existing law, or prevent the State from making any law, relating to 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. At the same time, it is clear that in order that the State might carry on business to the exclusion of citizens it must make a law to that effect.
The amendment had not been made by the time the Full Bench case reported as--'Moti Lal v. Uttar Pradesh', AIR 1951 All. 257, was decided, but the ruling presaged the amendment in laying down (at page 267, paragraph 49) that nationalisation of any industry was not possible without: legislation. In the present case nationalisation has not been effected by legislation, but by an executive flat; it is therefore unconstitutional and cannot over-ride the fundamental right of the petitioner. My finding on the second point therefore is that by ousting the petitioner from its business, in the manner in which it has done it the respondent has infringed the fundamental right of the petitioner, under Article 19 (1) (g) of the Constitution.
13. The plea that the petitioner had other adequate remedy open to it has no force. There is no other statute but the Constitution which prescribes the remedy of the enforcement of the fundamental rights, and the power of enforcement of those rights has been conferred on only the Supreme Court under Article 32 and the High Courts under Article 226. The latter is not one of those Articles of Chapter V of Part VI of the; Constitution which have been excepted from their applicability to this Court by Section 6 of the Judicial Commissioners' Courts (Declaration as High Courts) Act, 1950.
So far as the Supreme Court is concerned, that Hon'ble Court has, by reason of Article 32 being included in Part III of the Constitution, been, constituted the protector and guarantor of fundamental rights; but, looking at it merely from the-narrower view-point of power to issue write for enforcement of fundamental rights, the jurisdiction is peculiarly and exclusively that of the Supreme Court and the High Courts. -- 'Romesh Thapper v. State of Madras', 1950 S. C. B. 594, at pp. 598 and 597.
14. The next question is whether the present, petitioner has lost that right. One ground put forward on behalf of the respondent in support of the contention was that of laches on the part of the petitioner in moving this Court. The present petition was filed on 1-12-1950, about tea months after the right asserted by the petitioner came into existence. It would, however, be too much to expect that a people so long steeped in subjection would become conscious of their rights, and so fully conscious as to be able to vindicate them, as soon as the rights were born. To deny his new-won freedom to a citizen of this country on the equitable ground of laches, judged by standards set by seasoned travellers on the path of liberty like the U. K. or the U. S. A., would therefore be nothing but a negation of justice.
The said Allahabad Full Bench case.--'Motilal v. Uttar Pradesh', AIR 1951 All 257 appears to have been the first one wherein recourse to vindication of their rights by the issue of writs under Article 226 of the Constitution was had by owners of motor buses. That case was decided on 11-5-1950 and published in the January 1951 issue of the AIR. Armed with a typed copy of the judgment in that case, the first case of a like nature in this State was filed on 25-9-1950 by the Baghat Transport Service Limited and others. It was decided, and writs in the nature of mandamus were issued to the State of Himachal Pradesh, by this Court on 22-1-1951. 'The present petition was therefore filed whilst the fate of that case still hung in the balance. It cannot, in the circumstances, be said that the present petitioner was guilty of laches.
But if explanation for the so-called delay be necessary, the petitioner has successfully offered it. Sardar Gur Bachan Singh, a Director of the petitioner Company, has sworn an affidavit to the effect that Sri. G.N. Raina, Deputy Commissioner of Chamba, was approached on behalf of the Company in February, 1950, and on several occasions subsequently, with the request to move the respondent to permit the petitioner to resume functioning on the said route, and that the Deputy Commissioner assured the Directors that he had written several letters to the Government and was hopeful of the Company's cause succeeding. It will be remembered that the Deputy Commissioner was a Director of the Company as the respondent's nominee.
Sri Raina has since retired, but the allegation has been supported by the affidavit of the other Government nominated Director, Sri Mehta Autar Chand. There is no doubt that this affidavit was filed at a late stage during the arguments in the case, but delay was the only charge levelled against the affidavit. It was not even suggested that the affidavit of the gentleman in question was not worthy of credence. There is a counter-affidavit that no communication of the kind was received from the Deputy Commissioner. That may be so, but, in view of the said affidavit of Sri Mehta Autar Chand, it appears that the Deputy Commissioner in question kept the petitioner up on hopes held out.
Again, there is affidavit of Sardar Gur Bachan Singh that the Directors of the Company interviewed the Chief Commissioner and the Secretary, Development, for the last time on 8-11-1950, when the former were finally informed that the Central Government were unwilling to accede to the Company's request. The Secretary has filed a counter-affidavit to the effect that there was no correspondence with the Central Government, and that the Directors were not told anything about that. But the factum of the Directors having interviewed the Chief Commissioner and the Secretary on 8-11-1950 was not denied. It appears therefore that at first the petitioner was kept up on hopes by the Deputy Commissioner, and that it was not till 8-11-1950 that the hopes were shattered. In the circumstance, the present petition filed less than a month thereafter cannot be said to have been filed with delay.
15. The other ground put forward in support of the contention that petitioner had lost its right to any of the reliefs claimed was that the petitioner had not come with clean hands. It was contended that it had not disclosed in its petition the sale of its stock-in-trade to the respondent or the details of explanation for delay. From what has been adverted to already, the former did not constitute material particulars. Their disclosure was therefore unnecessary. As regards the explanation for delay, though the details were given later, it is contained in essence in paragraph 15 of the petition. I hold that there is no conduct of the petitioner by reason of which it could be said to have lost the right to relief which it has otherwise so well established.
16. The last contention is based on the following well-known dictum of Lord Ellenborough in -- 'R. v. Canterbury (Archbishop) and London (Bishop), (1812) 15 East, 117', at page 136, as contained in paragraph 1269 of volume IX of Halsbury's Laws of England, the Hailsham second Edition, at page 744:
'The writ of 'mandamus' is a high prerogative writ of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation, or inferior court, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty.'
The requirements of this dictum are easily satisfied. The particular thing for the doing of which a writ of 'mandamus' will issue in this case is in the nature of a public duty, for, it is a duty which will be required to be performed in the interests of the travelling public, and it no doubt appertains to the respondent's office in its administrative capacity.
17. It only remains now to consider the appropriate relief which should be granted to the petitioner. The first relief cannot be granted because, while the petitioner may be entitled to ply transport vehicles on the route in question, it has no right to prevent the respondent from doing so. True, the respondent is not entitled to carry on the business in question as a monopolistic venture without legislation, but the talisman of, monopoly is broken as soon as the petitioner's right to carry on the business, while no such legislation exists, is recognised.
Nor can the second relief be granted because stand on the basis of agreement has been given up on behalf of the petitioner. The third relief is equally out of the question as no data for the working out of compensation have been supplied. In exercise, however, of the wide discretion which this Court has under Article 226, the appropriate relief justified by the circumstances of the case may be given to the petitioner under the general prayer contained in the petition.
18. A writ in the nature of 'mandamus' shallissue to the respondent to withdraw the noticeprohibiting the petitioner Company from plyingmotor transport on the Chamba-Bannikhet route,and (until the State makes laws relating to thecarrying on by the State, or by a corporationowned or controlled by the State, of the motortransport business, whether to the exclusion,complete or partial, of citizens or otherwise) tonear and dispose of according to law the application, if any, which the petitioner might preferfor permitting it to ply motor transport on thesaid route. The respondent will pay Rs. 50/-/-as costs to the petitioner.