1. This Court by its decision dated 11-8-1952 issued, on the application of the Chamba Valley Transport Ltd. under Article 226 of the Constitution, a writ in the nature of 'mandamus' to the State of Himachal Pradesh, to withdraw the notice prohibiting the petitioner from plying motor transport on a certain route until transport business is nationalised by legislation, and to hear and dispose of ac-cording to law any application which the petitioner might make for permitting it to ply motor transport on that route. The present application has been filed by the Slate of Himachal Pradesh for a certificate under Article 132(1) of the Constitution that the case involves a substantial question of law as to the interpretation of the Constitution. The application has been opposed on behalf of the Chamba Valley Transport Limited.
2. Various grounds have been set forth in the present petition. Some relate to matters which were never adjudicated upon by this Court (e.g. whether it was open to the State not to recognise the ante-cession rights of the Transport Company based on contract), others relate to matters which clearly do not involve any question of law as to the interpretation of the Constitution (e.g. whether the petition under Article 226 should have been dismissed on the grounds of laches or of other adequate remedy being open to the petitioner). These grounds therefore I shall not deal with. I shall deal with only two grounds urged before me on behalf of the petitioner, the State of Himachal Pradesh, one clearly set forth in the grounds of the petition and another which, though not set forth in the grounds, was argued before me.
3. The first ground related to the finding of this Court that under Clause (6), Article 19 of the Constitution, as amended by Section 3 of the Constitution, (First Amendment) Act, 1951, the State could not nationalise transport, as it has done in the present case, without legislation. The contention of the learned counsel for the respondent in this connection was that the law on this matter was so clear that he who runs may read it, and therefore it could not be said that any substantial question of law as to the interpretation of the Constitution was involved. Indeed, it was not pretended on behalf of the petitioner that the law since the amendment was not as I have interpreted it in my decision against which the petitioner seeks to go up in appeal to the Supreme Court. Nor was it suggested on behalf of the petitioner that the State sought to nationalise transport by legislation.
That being so, neither the relevant law nor its application to the facts of the present case was in any way in controversy. And where that is the state of affairs it is clear that it could not be said that the case, involved a substantial question of law as to the interpretation of the Constitution. This view is supported by two rulings cited by the learned counsel for the respondent:--'Krishnaswami v. Governor-General in Council', AIR 1947 FC 37 (A) and--Subba Rao v. Veeraju', AIR 1951 Mad 969 (FB) (B). The first of the two grounds which I proposed to deal with, therefore, is not a good ground for granting the present petition.
4. The same cannot however be predicated of the other ground. This other ground has reference to the finding recorded by this Court in relation to the contention of the Chamba Valley Transport in the present case that the provisions of Article 19 not being retrospective they could not revivify a right which had been put an end to prior to the commencement of the Constitution on 26-1-1950. The argument put forward on behalf of the State of Himachal Pradesh was that its act of putting an end to the transport business of the Chamba Valley Transport Limited by a notice dated 10-9-1949 did not, come within the mischief of Clause (6) of Article 19 of the Constitution as amended by Section 3 of the Constitution (First Amendment) Act, 1951, which amendment came into force on 18-6-1951, because that notice was issued, and the agreement on foot of which the Chamba Valley Transport Limited were granted the right of plying buses on the route in question was entered into, prior to the commencement of the Constitution and, in any case, prior to the said amendment of Clause (6) of Article 19 of the Constitution.
This contention was repelled by this Courton the ground that the right which the Transport Company sought to enforce did not existprior to the commencement of the Constitution.It was therefore held that there could be noquestion of its ante-Constitution infringement,or of retrospective application of provisions of Article 19 of the Constitution. Now there couldbe no doubt but that the question of law thusdecided was a fairly arguable one, and it wasdealt with by this Court at some length. Itwas held in the aforesaid 1951 Madras ruling,cited by the learned counsel for the respondent himself, as follows:
'When a question of law is fairly arguable, when there is room, for difference of opinion on it, then such a question would be a substantial question of law. If the High Court thought it necessary to deal with a question of law at some length, and discuss alternative views which can be taken on the point, than, such a question would be a substantial question.'
I would therefore hold that this second ground urged on behalf of the petitioner relates tq a matter which involved a substantial question of law. And as the decision in question related to whether the provisions of Article 19 were retrospective in their application, the matter involved a substantial question of law as to the interpretation of the Constitution. I therefore hold that on this second ground the present application of the State of Himachal Pradesh should be granted.
5. Before I conclude I have to dispose of an application put in by the State for stay of enforcement of the operative portion of my decision dated 11-8-1952. An interim order of stay was passed on the preferment of the application, and it so happens that notice to the respondent to show cause against the application was also issued for to-day. It is really unnecessary to go at any length into the pros and cons of the application for stay since this Court cannot grant any stay after the disposal to-day of the main application under Article 132(1). I deem it proper however to refer in passing to an argument put forward by the learned counsel for the respondent in opposing the stay application, namely, that although the writ in question was issued as long ago as 11-8-1952 the State of Himachal Pradesh had neither withdrawn the notice prohibiting the Company from plying motor transport nor disposed of the Company's application for permitting it to ply motor transport on the route in question.
As regards the latter portion of the operative part of my judgment, I am satisfied with the reply made by the Government Advocate on behalf of the State that the application of the Transport Company is being considered. If it has not been disposed of so far, the reason seems to be that disposal of such applications necessarily takes time. It cannot yet be said that the State has taken an inordinately long time in dealing with, the Company's application. As regards the withdrawal of notice, the Government Advocate stated that the notice had not been withdrawn because it was understood that the notice stood withdrawn by the very wordings of the order of this Court. I am surprised at such an interpretation of my order since the order clearly directed the State to withdraw the notice prohibiting the petitioner-Company from plying motor transport on the Chamba-Banikhet route.
The contents of the stay application, however, do lend support to the contention of the Government Advocate, for the only portion of the operative part of my judgment in question against which the stay has been sought is the one relating to the disposal of the Transport Company's application for permitting it to ply transport on the route in question. No stay has been prayed for in connection with the withdrawal of notice. It does appear therefore that although the interpretation which the State has put upon my order dated 11-8-1952 is against the plain meaning of the words of my order, it cannot be said that it has designedly flouted the order of this Court. I am satisfied with the explanation offered by the Government Advocate on behalf of the State, but at the same time I expect, now that the meaning of my order has been clearly understood by the State, that my order will be given effect to without further delay.
6. The application is allowed and it is hereby certified under Article 132(1) of the Constitution that the case decided by this Court on 11-8-1952 in the--'Chamba Valley Transport Ltd. v. The State of Himachal Pradesh', AIR 1953 Him Pra 8 (C) involves a substantial question of law as to the interpretation of the Constitution. In view of the controversial nature of the points involved, and in view especially of the misinterpretation of my order dated 11-8-1952 by the State of Himachal Pradesh, I make no order as to the costs of the present application.