Deep Chand Vs. The State of Uttar
Pradesh & Ors [1959] INSC 3 (15 January 1959)
SUBBARAO, K.
DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H.
SINHA, BHUVNESHWAR P.
WANCHOO, K.N.
CITATION: 1959 AIR 648 1959 SCR Supl. (2) 8
CITATOR INFO :
R 1960 SC1080 (32) R 1962 SC 594 (16) RF 1962
SC 981 (14) RF 1962 SC1517 (22) E 1962 SC1753 (15,16) R 1963 SC1019 (18) R 1963
SC1531 (20) R 1963 SC1561 (11) RF 1964 SC 381 (53) R 1966 SC1780 (5) RF 1967
SC1091 (11) D 1967 SC1480 (13,21) RF 1967 SC1643 (110) D 1969 SC1225 (7,8) RF
1972 SC 425 (12) R 1972 SC1738 (15,21) RF 1972 SC2205 (26) RF 1973 SC1461 (915)
RF 1974 SC1300 (33,41) RF 1974 SC1480 (10) RF 1979 SC 25 (40) R 1979 SC 898
(31) R 1979 SC 984 (11) R 1983 SC1019 (65,71) R 1984 SC1260 (14) RF 1988 SC 329
(13) R 1990 SC 104 (8) R 1990 SC 761 (4) RF 1990 SC2072 (11,16,31,44) R 1992
SC1310 (8,15)
ACT:
Transport Service-Scheme of nationalisation
formulated under State enactment of Amendment of Central Act-Effect Repugnancy--Constitutional
validity of State enactment-Uttar Pradesh Transport Service (Development) Act
(IX of 1955), s. 11(5)-Motor Vehicles (Amendment) Act, 1956 (100 of 1956),
Ch.IV A--General Clauses Act, 1897 (10 of 1897), s. 6Constitution of
India-Articles 13, 31, 245, 246, 254.
HEADNOTE:
These appeals impugned the constitutionality
of the Uttar Pradesh Transport Service (Development) Act, 1955 (U. P. IX Of
1955), passed by the State Legislature after obtaining the assent of the
President, and the validity of the scheme of nationalisation framed and the
notifications issued by the State Government under it. The appellants as permit
holders under the Motor Vehicles Act, 1939, were plying buses on different routes
in Uttar Pradesh along with buses owned by the State Government. The State
Government issued a notification under S. 3 Of the impugned Act directing that
the said routes along with others should be exclusively served by the State
buses, and followed up that notification by others under ss4 and 8 of the Act.
The appellants moved the High Court under Art. 226 of the Constitution
challenging the validity of the said Act and the notifications there under. The
High Court rejected their petitions and thereafter came into force the Motor
Vehicles (Amendment) Act (100 Of 1956), inserting Ch. IVA into the Act, which
provided for nationalisation of transport services. The contentions-raised on
behalf of the appellants were,-(1) that the passing of the Amending Act made
the impugned Act wholly void under Art. 254(1) Of the Constitution, (2) that
the scheme framed under the impugned Act fell within the purview of s. 68B of
the Amending Act and ceased to be operative and (3) that even 'assuming that
the impugned Act was valid in so far as the scheme was concerned, it violated
Art. 31 as it stood before the Constitution (Fourth Amendment) Act, 1955. A
further contention on the basis of the proviso to Art. 254(2) was that the
impugned Act stood wholly repealed by the Amending Act, s. 68B of the latter
excluding the operation of the General Clauses Act. It was contended, inter
alia, on behalf of the State that the amendment of Art. 31 by the Constitution
(Fourth Amendment) Act, 1955, having removed, before the scheme under the
impugned Act had 9 yet been framed, the constitutional limitation which that
Article had imposed on the Legislature when it passed the impugned Act, had the
effect of validating that Act passed by it at a time when it was subject to the
limitation.
Held, (per curiam), that the Uttar Pradesh
Transport Service (Development) Act, 1955, did not, on the passing of the Motor
Vehicles (Amendment) Act, 1956 (100 of 1956), become wholly void under Art.
254(1) Of the Constitution but continued to be a valid and subsisting law
supporting the scheme already framed under the U.P. Act. Even assuming that the
Amending Act had the effect, under Art. 254(2), of repealing the State Act,
such repeal could not nullify the scheme already framed under that Act, for the
provisions of s. 6 of the General Clauses Act would operate to save it.
Nor could it be said, having regard to the
provisions of the impugned Act and particularly s. II(5) thereof, that it
offended Art. 31 of the Constitution as it stood before the Constitution
(Fourth Amendment) Act, 1955, by failing to provide for the payment of adequate
compensation.
Per Das, C.J., and Sinha J.-There was no
reason why the doctrine of eclipse as explained in Bhikaji Narain Dhakras v.
The State of Madhya Pradesh, [1955] 2 S.C.R. 589, could not also apply to a
post-Constitution law that infringed a fundamental right conferred on citizens
alone. Such a law, though shadowed and rendered ineffective by the fundamental
right so far as the citizens were concerned, would remain effective so far as
noncitizens were concerned. The moment the shadow was removed by a
constitutional amendment, the law would apply to citizens without re-enactment.
John M. Wilkerson v. Charles A. Rahrer,
(1891) 140 U.S. 545;
35 L. Ed.,572 and Bhikaji Nayain Dhakras v.
The State of Madhya Pradesh, [1955] 2 S.C.R. 589, referred to.
The question whether a post-Constitution law
that infringed a fundamental right guaranteed to all persons, citizens or
noncitizens' would be subject to that doctrine should, however, be left open.
Held, (per Bhagwati, Subba Rao and Wanchoo,
jj.), that it was apparent from the provisions of Arts. 254, 246 and 13 of the
Constitution, read together, that the power of Parliament and the -State
Legislature to make laws with regard to any of the matters enumerated in the
relevant list in the Seventh Schedule was subject to the provisions of the
Constitution including Art. 13. There was a clear distinction between the two
clauses of Art. I3. Under cl. (1), pre-Constitution law subsisted except to the
extent of its inconsistency with the provisions of Part III whereas under Cl.
(2) any post-Constitution law contravening those provisions was a nullity from
its inception to the extent of such contravention. The words "any law"
in the second line of 2 Cl. (2) meant an. Act factually passed in spite of the
prohibition contained therein, and did not pre-suppose that the law made was
not a nullity. That prohibition went to the root and limited the State's power
of legislation and law made in spite of it was a still-born one.
In construing the constitutional provisions
relating to the powers of the legislature embodied in Arts. 245 and 13(2) of
the Constitution, no distinction should be made as between an affirmative and a
negative provision, for both are limitations on that power.
K. C. Gajapati Narayan Deo v. The State of
Orissa, [1954] S.C.R. 1, referred to.
A distinction, well-recognised in judicial
decisions, had, however, to be made in judging the effect of law made in
transgression of the limits fixed by Arts. 245 and I3(2), between an Act that
was void from its inception and one that, though valid when made, was rendered
unconstitutional later on. On that distinction was based the principle that an
after-acquired power could not validate a statute and a law validly made could
take effect when the obstruction was removed.
A review of the relevant authorities and
judicial decisions clearly established, (1) that affirmative conferment of
power to make laws subject-wise and the negative prohibition from infringing
any fundamental rights were but two,,aspects of want of legislative power, (2)
that by expressly making the power to legislate on the entries in the Seventh
Schedule subject to other provisions of the Constitution, that power was subjected
to the limitations laid down in Part III of the Constitution, (3) that,
therefore, a law in derogation or in excess of such power would be void ab
initio either wholly or to the extent of the contravention and that (4) the
doctrine of eclipse could be invoked only in the case of a law that was valid
when made but was rendered invalid by a supervening constitutional
inconsistency.
Newberry v. United State, (1912) 265 U.S.
232; 65 L. Ed. 9I3; John M. Wilkerson v. Charyles A. Rahrer, (1891) 140 U. S.
545; 35 L. Ed. 572; Carter v. Egg and Egg Pulp Marketing Board, (1942) 66
C.L.R. 557; Keshavan Madhava Menon v. The State of Bombay, [1951] S.C.R. 228;
Behram Khurshed Pesikaka v. The State Of Bombay, [1955) 1 S.C.R. 589; Saghir
Ahmed v. The State of U. P. [1955] 1 S.C.R. 707; Ram Chandra Balai v. State of
Orissa, [1956] S.C.R. 28 and Pannalal Binjraj v. Union of India, [1957] S.C.R.
233, referred to and discussed.
The tests of repugnancy between two statutes,
one passed by the Parliament and the other by the State Legislature, were, (1)
whether there was a direct conflict between them, (2) whether Parliament
intended to lay down an exhaustive code in respect of the subject-matter
replacing the Act of the State Legislature, and (3) whether both the laws
occupied the same field.
A comparison of the provisions of the two
Acts indicated 11 that both were intended to operate in respect of the same
subject matter and the same field but only in respect of the schemes initiated
after the Amending Act had come into force, the latter Act having no
retrospective effect. The State Act must, therefore, yield place to the Central
Act to that extent and become void only in respect of schemes framed under the
Central Act.
Keshavan Madhava Menon v. The State of Bombay,
[1951] S.C.R. 228, applied.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 380 to 389, 391 to 399, 401, 429 and 431 to 434 of 1958.
Appeals from the judgment and decree dated
December 19, 1956, of the Allahabad High Court in Civil Misc. Writs Nos.
1574, 1575, 1576, 1577, 1578,
1579,1444,1584,1586,1589, 1631, 1632, 1634, 1635, 1636,1694, 1695, 1697, 1704,
1707, 3726, 1647, 1948 and 1949 and 1956.
M. K. Nambiyar, Shyam Nath Kacker, J. B.
Dadachanji, S. N. Andley and Rameshwar Nath, for the appellants (in C. As. Nos.
380-385, 387-389, 391-399 and 401 of 1958).
S.N.Kacker and J. B. Dadachanji, for the
appellant (in C. A. No. 386/58).
Naunit Lal, for the appellants (in C. As.
Nos. 429 & 431434/58).
K. B. Asthana & G. N. Dikshit, for the
respondents.
1959. January 15. The judgment of Das, C. J.,
and Sinha, J., was delivered by Das, C. J. The judgment of Bhagwati, Subba Rao
and Wanchoo, JJ., was delivered by Subba Rao, J.
DAS, C. J.-We have had the advantage of
perusing the judgment prepared by our learned Brother Subba Rao and 'we agree
with the order proposed by him, namely, that all the above appeals should be
dismissed with costs, although we do not subscribe to all the reasons advanced
by him.
The relevant facts and the several points
raised by learned counsel for the appellants and the petitioners in support of
the appeals have been fully set out in the judgment which our learned Brother
will presently deliver and it is not necessary for us to set out the 12 same
here. Without committing ourselves to all the reasons adopted by our learned
Brother, we agree with his following conclusions, namely, (1) that the Uttar
Pradesh Transport Service (Development) Act, 1955 (Act IX of 1955), hereinafter
referred to as the U. P. Act, did -not, on the passing of the Motor Vehicles
(Amendment) Act, 1956 (100 of 1956), hereinafter referred to as the Central
Act, become wholly void under Art. 254(1) of the Constitution but continued to
be a valid and subsisting law supporting the scheme already framed under the U.
P. Act; (2) that, even if the Central Act be construed as amounting, under Art.
254(2), to a repeal of the U. P. Act, such
repeal did not destroy or efface the scheme already framed under the U. P. Act,
for the provisions of s. 6 of the General Clauses Act saved the same; (3) that
the U. P. Act did not offend the provisions of Art. 31 of the Constitution, as
it stood before the Constitution (4th Amendment) Act, 1955, for. the U. P. Act
and in particular s. 11(5) thereof provided for the payment of adequate
compensation. These findings are quite sufficient to dispose of the points
urged by Mr. Nambiyar and Mr. Naunit Lal in support of the claims and
contentions of their respective clients.
In view of the aforesaid finding that the U.
P. Act did not infringe the fundamental rights guaranteed by Art. 31, it is
wholly unnecessary to discuss the following questions, namely, (a) whether the
provisions of 'Part III of the Constitution enshrining the fundamental rights
are mere checks or limitations on the legislative competency conferred on
Parliament and the State Legislatures by Arts.
245 and 246 read with the relevant entries in
the Lists in the Seventh Schedule to the Constitution or are an integral part
of the provisions defining, prescribing and conferring the legislative
competency itself and (b) whether the doctrine of eclipse is applicable only to
pre-Constitution laws or can apply also to any post-Constitution law which
falls under Art. 13(2) of the Constitution. As, however, our learned Brother
has thought fit to embark upon a discussion of these questions, we desire to
guard ourselves against being understood as 13 accepting or acquiescing in the
conclusion that the doctrine of eclipse cannot apply to any post-Constitution
law. A post-Constitution law may infringe either a fundamental right conferred
on citizens only or a fundamental right conferred on any person, citizen or
non-citizen. In the first case the law will not stand in the way of the
exercise by the citizens of that fundamental right and, therefore, will not
have any operation on the rights of the citizens, but it will be quite
effective as regards non-,citizens. In such a case the fundamental right will,
qua the citizens, throw a shadow on the law which will nevertheless be on the Statute
Book as a valid law binding on non-citizens and if the shadow is removed by a
constitutional ,amendment, the law will immediately be applicable even to the
citizens without being re-enacted. The decision in John M. Wilkerson v. Charles
A. Rahrer (1) cited by our learned Brother is squarely in point. In other words
the doctrine of eclipse as explained by this Court in Bhikaji Narain Dhakras v.
The State of Madhya Pradesh (2) also applies to a postConstitution law of this
kind. Whether a post-Constitution law of the other kind, namely, which
infringes a fundamental right guaranteed to all persons, irrespective of
whether they are citizens or not, and which, therefore, can have no operation
at all when it is enacted, is to be regarded as a still born law as if it had
not been enacted at all and, therefore, not subject to the doctrine of eclipse
is a matter which may be open to discussion. On the findings arrived at in this
case, however, a discussion of these aspects of the matter do not call for a considered
opinion and we reserve our right to deal with the same if and when it becomes
actually necessary to do so.
SUBBA RAO, J.-These twenty-five appeals are
by certificate under Arts. 132 and 133 of the Constitution granted by the High
Court of Judicature at Allahabad and raise the question of the validity of the
scheme of nationalization of State Transport Service formulated by the State
Government and the consequential orders made by it.
(1) (1891) 140 U.S. 545; 35 L, Ed. 572, (2)
[1955] 2 S.C.R.
14 The said appeals arise out Writ Petitions
filed by he appellants in the Allahabad High Court challenging the validity of
the U. P. Transport Services (Development) Act of 1955, being U. P. Act No. IX
of 1955 (hereinafter referred to as the U. P. Act), and the notifications
issued thereunder. All the appeals were consolidated by order of the High
Court.
The appellants have been carrying on business
as stage carriage operators for a considerable number of years on different
routes in Uttar Pradesh under valid, permits issued under the Motor Vehicles
Act, 1939, along with buses owned by Government. The U. P. Legislature, after
obtaining the assent of the President on April 23, 1955, passed the U.
P. Act and duly published it on April 24,
1955. Under s. 3 of the U. P. Act, the Government issued a notification dated
May 17, 1955, where under it was directed that the aforesaid routes along with
others should be exclusively served by the stage carriages of the Government
and the private stage carriages should be excluded from those routes. On
November 12, 1955, the State Government published the notification under s. 4
of the U. P. Act formulating the scheme for the aforesaid routes among others.
The appellants received notices under s. 5 of the U. P. Act requiring them to
file objections, if any, to the said scheme; and after the objections were
received, they were informed that they would be heard by a Board on January 2,
1956. On that date, the objections filed by the operators other than those of
the Agra region were heard and the inquiry in regard to the Agra region was
adjourned to January 7, 1956. It appears that the operators of the Agra region
did not appear on the 7th.
The notification issued under s. 8 of the U.
P. Act was published in the U. P. Gazette on June 23, 1956, and on June 25,
1956, the Secretary to the Regional Transport Authority, Agra, sent an order
purported to have been issued by the Transport Commissioner to the operators,
of the Agra region prohibiting them from plying their stage carriages on the
routes and also informing them that their permits would be transferred to other
routes. On July 7, 1956, a notice was sent to 15 filed Writ Petitions in the
Allahabad High Court challenging the validity of the U. P. Act and the
notifications issued there under.
The facts in Civil Appeal No. 429 of 1958 are
slightly different from those in other appeals and they may be stated: The
appellant's application for renewal of his permanent permit was rejected in
1953; but, on appeal, the State Transport Authority Tribunal allowed his appeal
on September 6,1956, and directed his permit to be renewed for three years
beginning from November 1, 1953. Pursuant to the order of the Tribunal, the
appellant's pert-nit was renewed with effect from November 1, 1953, and it was
made valid up to October 31, 1956. The scheme of nationalisation was initiated
and finally approved between the date of the rejection of the appellant's
application for renewal and the date when his appeal was allowed. The appellant
applied on October 11, 1956, for the renewal of his permit and he was informed
by the Road Transport Authority, Allahabad, that no action on his application,
under reference was possible.
The appellant's contention, among others, was
that the entire proceedings were taken behind his back and therefore the scheme
was not binding on him.
The appellants in thirteen appeals, namely,
Civil Appeals Nos. 387 to 389, 391 to 394, 396 to 399 and 401 and 429 were
offered alternative routes. Though they tentatively accepted the offer,
presumably on the ground that it was the lesser of the two evils, in fact they
obtained stay as an interim arrangement and continued to operate on the old
routes.
The appellants filed applications for
permission to urge new grounds in the appeals, which were not taken before the
High Court. The said grounds read :-(i) That by reason of the coming into
operation of the Motor Vehicles (Amendment) Act, No. 100 of 1956, passed by
Parliament and published in the Gazette of India Extraordinary dated 31st
December, 1956, the impugned U. P.
Act No. IX of 1955 has become void.
(ii) That by reason of Article 254 of the
Constitution of India, the said impugned Act No. IX of 1955, 16 being repugnant
and inconsistent with the Central Act No.100 of 1956, has become void since the
coming into operation of the aforesaid Act No. 100 of 1956 ". The judgment
of the Allahabad High Court, which is the subject-matter of these appeals, was
delivered on December 19, 1956. The Amending Act of 1956 was published on
December 31, 1956. It is therefore manifest that the appellants could not have
raised the aforesaid grounds before the High Court. Further, the grounds raise
only a pure question of law not dependent upon the elucidation of any further
facts. In the circumstances, we thought it to be a fit case for allowing the
appellants to raise the new grounds and we accordingly gave them the
permission.
Mr. M. K. Nambiar, appearing for some of the
appellants, raised before us the following points: (i) The Motor Vehicles
(Amendment) Act (100 of 1956) passed by, the Parliament is wholly repugnant to
the provisions of the U. P Act and therefore the latter became void under the
provisions of Article 254(1) of the Constitution ; with the result that, at the
present time, there is no valid law where under the Government can prohibit the
appellants from exercising their fundamental right under the Constitution,
namely, to carry on their business of motor transport; (ii) the scheme framed
under the Act, being one made to operate in future and from day to day, is an
instrument within the meaning of s. 68B of the Amending Act, and therefore the
provisions of the Amending Act would prevail over those of the scheme, and
after the Amending Act came into force, it would have no operative force; and
(iii) even if the U. P. Act was valid and continued to be in force in regard to
the scheme framed thereunder, it would offend the provisions of Art. 31 of the
Constitution, as it was before the Constitution (Fourth Amendment) Act, 1955,
as, though the State had acquired the appellant's interest in a commercial
undertaking, no compensation for the said interest was given, as it should be
under the said Article. The other learned -Counsel, who followed Mr. Nambiar,
except Mr. Naunit Lal, adopted his argument. Mr. Naunit Lal, in addition to the
argument 17 advanced by Mr. Nambiar in regard to the first point, based his
contention on the proviso to Art. 254(2) of the Constitution rather than on
Art. 254(1). He contended that by reason of the Amending Act,,, the U. P. Act
was repealed in toto and, because of s. 68B of the Amending Act, the operation
of the provisions of the General Clauses Act was excluded. In addition, he
contended that in Appeal No. 429 of 1958, the scheme, in so far as it affected
the appellant's route was bad inasmuch as no notice was given to him before the
scheme was approved.
We shall proceed to consider the argument
advanced by Mr. Nambiar in the order adopted by him; but before doing so, it
would be convenient to dispose of the point raised by the learned Advocate
General, for it goes to the root of the matter, and if it is decided in his
favour, -other questions do not fall for consideration. The question raised by
the learned Advocate General may be posed thus: whether the amendment of the
Constitution removing a constitutional limitation on a legislature to make a
particular law has the effect of validating the Act made by it when its power
was subject to that limitation. The present case illustrates the problem
presented by the said question. The U. P. Legislature passed the U. P. Act on
April 24, 1955, whereunder the State Government was authorized to frame a
scheme of nationalization of motor transport. After following the procedure
prescribed therein, the State Government finally published the scheme on June
23, 1956.
The Constitution (Fourth Amendment) Act,
1955, received the assent of the President on April 27, 1955. The -State
Government framed the scheme under the U. P. Act after the passing of the
Constitution (Fourth Amendment) Act, 1955.
Under the said Amendment Act, el. (2) of Art.
31 has been amended and cl. (2A) has been inserted. The effect of the amendment
is that unless the law provides for the transfer of 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 3 18 requisition of property within the meaning of cl. (2) of that Article
and therefore where there is no such transfer, the condition imposed by cl.
(2), viz., that the law Should fix the amount of compensation or specify the
principles on which and the manner in which the compensation is to be determined
and given is not attracted. If the amendment applies to the U. P. Act, as there
is no transfer of property to the State, no question of compensation arises.
On the other hand, if the unamended Article
governs the U. P. Act, the question of compensation will be an important factor
in deciding its validity. The answer to the problem so presented depends upon
the legal effect of a constitutional limitation of the legislative power on the
law made in derogation of that limitation. A distinction is sought to be made
by the learned Advocate General between the law made in excess of the power
conferred on a legislature under the relevant List in the Seventh Schedule and
that made in violation of the provisions of Part III of the Constitution.
The former, it is suggested, goes to the root
of the legislative power, whereas the latter, it is said, operates as a check
on that power, with the result that the law so made is unenforceable, and as
soon as the check is removed, the law is resuscitated and becomes operative
from the date the check is removed by the constitutional amendment.
Mr. Nambiar puts before us the following two
propositions in support of his contention that the law so made in either
contingency is void ab initio: (i) the paramount of fundamental rights over all
legislative powers in respect of all the Lists in the Seventh Schedule to the
Constitution is secured by the double process of the prohibition laid by Art.
13(2) and the restrictions imposed by Art. 245, unlike the mere implied prohibition
implicit in the division of power under Art. 246; and (ii) where the provisions
of an enactment passed by a legislature after January 26, 1950, in whole or in
part-subject to the doctrine of severability-are in conflict with the
provisions of Part III, the statute, in whole or in part, is void ab initio.
This question was subjected to judicial scrutiny by this 19 Court, but before
we consider the relevant authorities, it would be convenient to test its
validity on first principles.
The relevant Articles of the Constitution
read as follows:
Article 245: "(1)Subject to the
provision of this Constitution, Parliament may make laws for the whole or any
part of the territory Of India, and the Legislature of a State may make laws
for the whole or any part of the State." Article 246: " (1)
Notwithstanding anything in clauses (2) and (3) Parliament has exclusive power
to make laws with respect to any of the matters enumerated in List I in the
Seventh Schedule (in this Constitution referred to as the" Union List
").
(2) Notwithstanding anything in clause (3),
Parliament and, subject to clause (1), the Legislature of any State also, have
power to make. laws with respect to any of the matters enumerated in List III
in the Seventh Schedule (in this Constitution referred to as the "
Concurrent List").
(3) Subject to clauses (1) and (2), the
Legislature of any State has exclusive power to make laws for such State or any
part thereof with respect to any of the matters enumerated in List II in the
Seventh Schedule (in this Constitution referred to as the " State List
").
(4) Parliament has power to make laws with
respect to any matter for any part of the territory of India not included in a
State notwithstanding that such matter is a matter enumerated in the State
List." Article 13: " (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 Dot 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." 20 Article 31 (Before the -Constitution (Fourth Amendment) Act, 1955):
" (1) No person shall be deprived of his
property save by authority of law.
(2) No property, movable or immovable,
including any interest in, or in any company owning, any commercial or
industrial undertaking, shall be taken possession of or acquired for public
purposes under any law authorising the taking of such possession or such
acquisition, unless the law provides for compensation for the property taken
possession of or acquired 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 The combined effect of the said provisions may be
stated thus: Parliament and the Legislatures of States have power to make laws
in respect of any of the matters enumerated in the relevant lists in the
Seventh Schedule and that power to make laws is subject to the provisions of
the Constitution including Art. 13, i.e., the power is made subject to the
limitations imposed by Part III of the Constitution. The general power to that
extent is limited. A Legislature, therefore, has no power to make any law in
derogation of the injunction contained in Art. 13. Article 13(1) deals with
laws in force in the territory of India before the commencement of the
Constitution and such laws in so far as they are inconsistent with the
provisions of Part III shall, to the extent of such inconsistency be void. The
clause, therefore, recognizes the validity of, the pre-Constitution laws and
only declares that the said laws would be void thereafter to the extent of
their inconsistency with Part III; whereas cl. (2) of that article imposes a
prohibition on the State making laws taking away or abridging the rights
conferred by Part III and declares that laws made in contravention of this clause
shall, to the extent of the contravention, be void. There is a clear
distinction between the two clauses. Under el. (1), a pre-Constitution law
subsists except to the extent of its inconsistency with the provisions of Part
III; whereas, no post-Constitution law 21 can be made contravening the
provisions of Part III, and therefore the law, to that extent, though made, is
a nullity from its inception. If this clear distinction is borne in mind, much
of the cloud raised is dispelled. When cl. (2) of Art. 13 says in clear and
unambiguous terms that no State shall make any law which takes away or abridges
the rights conferred by Part III, it will not avail the State to contend either
that the clause does not embody a curtailment of the power to legislate or that
it imposes only a check but not a prohibition. A constitutional prohibition
against a State making certain laws cannot be whittled down by analogy or by
drawing inspiration from decisions on the provisions of other Constitutions;
nor can we appreciate the argument that the words " any law " in the
second line of Art. 13(2) posits the survival of the law made in the teeth of
such prohibition. It is said that a law can come into existence only when it is
made and therefore any law made in contravention of that clause presupposes
that the law made is not a nullity. This argument may be subtle but is not
sound. The words " any law " in that clause can only mean an Act
passed or made factually, notwithstanding the prohibition. The result of such contravention
is stated in that clause. A plain reading of the clause indicates, without any
reasonable doubt, that the prohibition goes to the root of the matter and
limits the State's power to make law; the law made in spite of the prohibition
is a stillborn law.
Cooley in his book " Constitutional
Limitations" (Eighth Edition, Volume I), states at page 379:
" From what examination has been given
to this subject, it appears that whether a statute is constitutional or not is
always a question of power; that is, a question whether the legislature in the
particular case, in respect to the subject-matter of the act, the manner in
which its object is to be accomplished, and the mode of enacting it, has kept
within the constitutional limits and observed the constitutional
conditions." The Judicial Committee in The Queen. v. Burah (1) observed at
page 193 as under (1) (1878) L.R. 5 I. A. 178.
22 The established courts of Justice, when a
question arises whether the prescribed limits have been exceeded, must of
necessity determine that question ; and ,the only way in which they can
properly do so, is by ;looking to the terms of the instrument by which,
affirmatively, the legislative powers were created, and by which, negatively,
they are restricted." The Judicial Committee again in Attorney-General for
Ontario v. Attorney-General for Canada (1) crisply stated the legal position at
page 583 as follows:"............... if the text is explicit the text is
conclusive, alike in what it directs and what it forbids." The same idea
is lucidly expressed by Mukherjea, J., as he then was, in K. C. Gajapati
Narayan Deo v. The State of Orissa (2). It is stated at page 11 as follows:"
If the Constitution of a State distributes the legislative powers amongst
different bodies, which have to act within their respective spheres marked out
by specific legislative entries, or if there are limitations on the legislative
authority in the shape of fundamental rights, questions do arise as to whether
the legislature in a particular case has or has not, in respect to the
subject_matter of the statute or in the method of enacting it, transgressed the
limits of its constitutional powers." The learned Judge in the aforesaid
passage clearly accepts the doctrine that both the transgression of the ambit
of the entry or of the limitation provided by the fundamental rights are
equally transgressions of the limits of the State's constitutional powers.
It is, therefore, manifest that in the
construction of the constitutional provisions dealing with the powers of the
legislature, a distinction cannot be made between an affirmative provision I
and a negative provision; for, both are limitations on the power. The
Constitution affirmatively confers a power on the legislature to make laws
within the ambit of the relevant entries in the lists and negatively prohibits
it from making laws infringing the fundamental rights. It (1) (1912) A.C. 571.
(2) [1954] S.C.R. 1.
23 goes further and makes the -legislative
power subject to the prohibition under Art. 13(2). Apparent wide power is,
therefore, reduced to the extent of the prohibition.
If Arts. 245 and 13(2) define the ambit of
the power to legislate, what is the effect of a law made in excess of that
power ? The American Law gives a direct and definite answer to this question.
Cooley in his " Constitutional Limitations " (Eighth Edition, Volume
I) at page 382 under the heading " Consequences if a statute is void
" says :" When a statute is adjudged to be unconstitutional, it is as
if it had never been................. And what is true of an act void in to is
true also as to any part of an act which is found to be unconstitutional, and
which, consequently, is to be regarded as having never, at any time, been
possessed of any legal force." In Rottschaefer on Constitutional Law, much
to the same effect is stated at page 34:
" The legal status of a legislative
provision in so far as its application involves violation of constitutional
provisions, must however be determined in the light of the theory on which
Courts ignore it as law in the decision of cases in which its application
produces unconstitutional results. That theory implies that the legislative
provisions never had legal force as applied to cases within that clause."
In " Willis on Constitutional Law ", at page 89:
" A judicial declaration of the
unconstitutionality of a statute neither annuls nor repeals the statute but has
the effect of ignoring or disregarding it so far as the determination of the
rights of private parties is concerned.
The Courts generally say that the effect of
an unconstitutional statute is nothing. It is as though it had never been
passed.........................
" Willoughby on Constitution of the
United States Second Edition, Volume I, page 10:
" The Court does not annul or repeal the
statute if it finds it in conflict with the Constitution. It simply refuses to
recognize it, and determines the rights of 24 the parties just as if such
statute had no application. ....................
The validity of a statute is to be tested by
the constitutional power of a legislature at the time of its enactment by that
legislature, and, if thus tested, it is beyond the legislative power, it is not
rendered valid, without re-enactment, if later, by constitutional amendment,
the necessary legislative power is granted. I An after acquired power cannot,
ex proprio vigore, validate a statute void 'When enacted'.
" However, it has been held that where
an act is within the general legislative power of the enacting body, but is
rendered unconstitutional by reason of some adventitious circumstance, as, for
example, when a State legislature is prevented from regulating a matter by
reason of the fact that the Federal Congress has already legislated upon that
matter, or by reason of its silence is to be construed as indicating that there
should be no regulation, the act does not need to be re-enacted in order to be
enforced, if this cause of its unconstitutionality is removed. " For the
former proposition, the decision in Newberry v.
United States (1) and for the latter
proposition the decision in John M. Wilkerson v. Charles A. Rahrer (2) are
cited. In Newberry's Case the validity of the Federal Corrupt Practices Act of
1910, as amended by the Act of 1911, fixing the maximum sum which a candidate
might spend to procure his nomination at a primary election or convention was
challenged. At the time of the enactment, the Congress had no power to make
that law, but subsequently, by adoption of the 17th Amendment, it acquired the
said power. The question was whether an after-acquired power could validate a
statute which was void when enacted.
Mr. justice McReynolds delivering the opinion
of the court states the principle at page 920 :
" Moreover, the criminal statute now
relied upon ante-dates the 17th Amendment, and must be tested by powers
possessed at time of its enactment. An (1) (1921) 256 U.S. 232; 65 L. Ed. 913.
(2) (1891) 140 U.S. 545; 35 L. Ed. 572.
25 after-acquired power cannot, ex proprio
vigore, validate a statute void when enacted." In Wilkerson's Case (1) the
facts were that in June 1890, the petitioner, a citizen of the United States
and an agent of Maynard, Hopkins & Co., received from his principal
intoxicating liquor in packages. The packages were shipped from the State of
Missouri to various points in the State of Kansas and other States. On August
9, 1890, the petitioner offered for sale and sold two packages in the State of
Kansas. The packages sold were a portion of the liquor shipped by Maynard,
Hopkins & Co. It was sold in the same packages in which it was received.
The petitioner was prosecuted for violating the Prohibitory Liquor Law of the
State of Kansas; for, under the said law, "any person or persons who shall
manufacture, sell or barter any intoxicating liquors, shall be guilty of a
misdemeanor ". On August 8, 1890, an Act of Congress was passed to the
effect that -intoxicating liquors transported into any State should upon
arrival in such State be subject to the operation and effect of the laws of
such State. It will be seen from the aforesaid facts that at the time the State
Laws were made, they were valid, but they did not operate upon packages of
liquors imported into the Kansas State in the course of interstate commerce,
for the regulation of inter-State commerce was within the powers of the
Congress; and that before the two sales in the Kansas State, the Congress made
an Act making intoxicating liquors transported into a State subject to the laws
of that State, with the result that from that date the State Laws operated on the
liquors so transported. Under those circumstances, the Supreme Court of the
United States held :
" It was not necessary, after the
passage of the Act of Congress of August 8, 1890, to re-enact the Law of Kansas
of 1899, forbidding the sale of intoxicating liquors in that State, in order to
make such State Law operative on the sale of imported liquors." The reason
for the decision is found at page 578:
(1) (1891) 140 U.S. 545; 35 L. Ed. 572.
4 26 This is not the case of a law enacted in
the unauthorized exercise of a power exclusively confided to Congress, but of a
law which it was competent for the State to pass, but which could not operate
upon articles occupying a certain situation until the passage of the Act of
Congress. That Act in terms removed the obstacle, and we perceive no adequate
ground for adjudging that a re-enactment of the State Law was required before
it could have the effect upon imported which it had always had upon domestic
property.
A reference to these decisions brings out in
bold relief the distinction between the two classes of cases referred to
therein. It will be seen from the two decisions that in the former the Act was
Void from its inception and in the latter it was valid when made but it could
not operate on certain articles imported in the course of inter-State trade. On
that distinction is based the principle that an after acquired power cannot, ex
proprio vigore, validate a statute in one case, and in the other, a law validly
made would take effect when the obstruction is removed.
The same principle is enunciated in Carter v.
Egg and Egg Pulp Marketing Board (1). Under s. 109 of the Australian
Constitution " when a law of a State is inconsistent with a law of the
Commonwealth, the latter shall prevail, and the former shall, to the extent of
the inconsistency, be invalid. " Commenting on that section, Latham, C.
J., observed at page 573:
" This section applies only in cases
Where, apart from the operation of the section, both the Commonwealth and the
State Laws which are in question would be valid. If either is invalid ab initio
by reason of lack of power, no question can arise under the section. The word
" invalid " in this section cannot be interpreted as meaning that a
State law whichis affected by the section becomes ultra vires in whole or in
part. If the Commonwealth law were repealed the State law would again become
operative. " We shall now proceed to consider the decisions of this Court
to ascertain whether the said principles are (1) (1942) 66 C.L.R. 557.
27 accepted or departed from. The earliest
case is Keshavan Madhava Menon v. The State of Bombay (1). There the question
was whether a prosecution launched under the Indian Press (Emergency Powers)
Act, 1931, before the Constitution could be continued after the Constitution
was passed. The objection taken was that the said law was inconsistent with
fundamental rights and therefore was void. In the context of the question
raised, it became necessary for the Court to consider the impact of Art. 13(1)
on the laws made before the Constitution. The Court, by a majority, held that
Art.
13(1) of the Indian Constitution did not make
existing laws which were inconsistent with fundamental rights void ab initio,
but only rendered such laws ineffectual and void with respect to the exercise
of the fundamental rights on and after the date of the commencement of the
Constitution and that it had no retrospective effect. Das, J., as he then was,
observed at page 233:
" It will be noticed that all that this
clause declares is that all existing laws, in so far as they are inconsistent
with the provisions of Part III shall, to the extent of such inconsistency, be
void. Every statute is prima facie prospective unless it is expressly or by
necessary implications made to have retrospective operation. " At page
234, the learned Judge proceeded to state:
" They are not void for all purposes but
they are void only to the extent they come into conflict with the fundamental
rights. In other words, on and after the commencement of the Constitution no
existing law -will be permitted to stand in the way of the exercise of any of
the fundamental rights.
Therefore, the void ness of the existing law
is limited to the future exercise of the fundamental rights..................
Such laws exist for all past transactions and for enforcing all rights and
liabilities accrued before the date of the Constitution. " At page 235,
the same idea is put in different words thus :".......................Article
13(1) only has the effect of (1) [1951] S.C.R. 228.
28 nullifying or rendering all inconsistent
existing laws ineffectual or nugatory and devoid of any legal force or binding
effect only with respect to the exercise Of fundamental rights on and after the
date of the commencement of the Constitution. " At page 236, the learned
Judge concludes:
" So far as the past acts are concerned
the law exists, notwithstanding that it does not exist with respect to the
future exercise of fundamental rights." Mahajan, J., as he then was, who
delivered a separate judgment, put the same view in different phraseology at
page 251 :
" The effect of Article 13(1) is only
prospective and it operates in respect to the freedoms which are infringed by
the State subsequent to the coming into force of the Constitution but the past
acts of a person which came within the mischief of the law then in force are
Dot affected by Part III of the Constitution." The learned Judge, when
American law was pressed on him in support of the contention that even the
pre-Constitution law was void, observed thus, at page 256 :
" It is obvious that if a statute has
been enacted and is repugnant to the Constitution, the statute is void since
its very birth and anything done under it is also void and illegal. The courts
in America have followed the logical result of this rule and even convictions
made under such an unconstitutional statute have been set aside by issuing
appropriate writs. If a statute is void from its very birth then anything done
under it, whether closed, completed, or inchoate, will be wholly illegal and
relief in one shape or another has to be given to the person affected by such
an unconstitutional law. This rule, however, is not applicable in regard to
laws which were existing and were constitutional according to the Government of
India Act, 1935. Of course, if any law is made after the 25th January, 1950,
which is repugnant to the Constitution, then the same rule will have to be
followed by courts in India as is followed in America and even convictions made
under such an unconstitutional law 29 will have to be set aside by resort to
exercise of powers given to this court by the Constitution." Mukherjea J.,
as he then was, in Behram Khurshed Pesikaka v.
The State of Bombay (1) says at page 652 much
to the same effect:
" We think that it is not a correct
proposition that constitutional provisions in Part 11I of our Constitution
merely operate as a check on the exercise of legislative power. It is axiomatic
that when the lawmaking 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
unconstitutionality go to the root of the power itself and there is no real
distinction between them. They represent but two aspects of want of 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 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 111 of the Constitution after the coming into force of the
Constitution. " The effect of the decision maybe stated thus: The learned
judges did not finally decide the effect of Art. 13(2) of the Constitution on
post-Constitution laws for the simple reason that the impugned law was a
pre-Constitution one.
Art. 13(1) was held to be prospective in
operation and therefore did not affect the preexisting laws in respect of
things done prior to-the Constitution. As regards the post Constitution period,
Art. 13(1) nullified or rendered all inconsistent existing laws ineffectual,
nugatory or devoid of any legal force or binding effect with respect to the
exercise of the fundamental rights. So far as the past acts were concerned, the
law existed, notwithstanding that it did not exist with respect to the future
exercise of the said rights. As regards the pre-Constitution laws, (1) [1955] 1
S.C.R. 613.
30 this decision contains the seed of the
doctrine of eclipse developed by my Lord the Chief Justice in Bhikaji Narain
Dhakras v. The State of Madhya Pradesh (1) where it was held that as the
pre-Constitution law was validly made, it existed for certain purposes even
during the post Constitution period. This principle has no application to
post-Constitution laws infringing the fundamental rights as they would be ab
initio void in to or to the extent of their contravention of the fundamental
rights.
The observations of the learned judges made
in the decision cited above bring out the distinction between pre and post Constitution
laws which are repugnant to the Constitution and the impact of Art. 13 on the
said laws.
In Behram Khurshed Pesikaka's Case(2), this
Court considered the legal effect of the declaration made' in the case of The
State of Bombay v. F. N. Balsara (3) that clause (b) of s. 13 of the Bombay
Prohibition Act (Bom. XXV of 1949) is void under Art. 13(1) of the Constitution
in so far as it affects the consumption or use of liquid medicinal or toilet
preparations containing alcohol and held that it was to render part of s. 13(b)
of the Bombay Prohibition Act inoperative, ineffective and ineffectual and thus
unenforceable. Bhagwati, J., at page 620, cited all the relevant passages from
textbooks on Constitutional Law and, presumably, accepted the view laid down
therein to the effect that an unconstitutional Act in legal contemplation is as
though it had never been passed. Jagannadhadas, J., at page 629, noticed the
distinction between the scope of cls. (1) and (2) of Art. 13 of the
Constitution. After citing a passage from " Willoughby on Constitution of
the United States ", the learned Judge observed :
" This and other similar passages from
other treatises 'relate, however, to cases where the entire legislation is
unconstitutional from the very commencement of the Act, a situation which falls
within the scope of article 13(2) of our Constitution. They do not directly
cover a situation which falls within (1) [1955] 2 S.C.R. 589. (2) [1955] 1
S.C.R. 613. (3)[1951] S.C. R. 682.
31 article 13(1)............... Thequestion
is what is the effect of article 13(1) on a pre-existing valid statute, which
in respect of a severable part thereof violates fundamental rights. Under
article 13(1) such part is, " void " from the date of the
commencement of the Constitution, while the other part continues to be valid.
Two views of the result brought about by this
void ness are possible, viz., (1) the said severable part becomes
unenforceable, while it remains part of the Act, or (2) the said part goes out
of the Act and the Act stands appropriately amended pro tanto. The first is the
view which appears to have been adopted by my learned brother, Justice Venkatarama
Aiyar, on the basis of certain American decisions. I feel inclined to agree
with it. This aspect, however, was not fully presented by either side and was
only suggested from the Bench in the course of arguments. We have not had the
benefit of all the relevant material being placed before us by the learned
advocates on either side. The second view was the basis of the arguments before
us. It is, therefore, necessary and desirable to deal with this case on that
assumption." This passage shows that his opinion-though a tentative one was
that the severable part became unenforceable while it remained part of the Act.
But the learned Judge made an incidental observation that the American view
applied to cases that fall within the scope of Art. 13(2) of the Constitution,
i.e., the entire legislation would be unconstitutional from the very
commencement of the Act. Venkatarama Aiyar, J., founded his decision on a
broader basis. At page 639, the learned Judge observed:
" Another point of distinction noticed
by American jurists between unconstitutionality arising by reason of lack of
legislative competence and that arising by reason of a check imposed on a
competent Legislature may also be mentioned.
While a statute passed by a Legislature which
had no competence cannot acquire validity when the Legislature subsequently
acquires competence, a statute which was within the competence of the
Legislature at the time of its enactment but which infringes a, constitutional
32 prohibition could 'be enforced 'Proprio vigore when once the prohibition is
removed." On the basis of this distinction, the learned Judge held that
Art. 13(1) of the Constitution only placed a check on a competent legislature
and therefore the word " void " in that article meant "
relatively void ", i.e., the law only condemned the Act as wrong to
individuals and refused to enforce it against them. In support of the said
conclusion the learned Judge cited a passage from " Willoughby on the
Constitution of the United States ". A comparison of the passage cited
with that in the text book discloses that one important sentence which makes
all the difference to the legal position is omitted by mistake and that
sentence is " An after-acquired power cannot ex proprio vigore validate a
statute void when enacted ". The second paragraph in the extract on which
the learned Judge placed reliance and also the decision relied upon, by him did
not support his conclusion. As already stated, the decision and the passage
dealt not with a case where the State had no power to make the law, but with a
case where the law lay dormant till a law of the Federal Congress removed the
conflict between the State Law and the Federal Law. That case may by analogy be
applied to Art. 13(1) in respect of laws validly made before the Constitution
but cannot be invoked in the case of a statute which was void when enacted. By
a subsequent order, this Court granted the review and reopened the case to
enable the :Bench to obtain the opinion of a larger Bench on the Constitutional
points raised in the judgment delivered by the learned Judges. That matter came
up before a Constitutional Bench, and Mahajan, C. J., who was a party to the
decision in Keshavan Madhava Menon's Case (1) explained the majority view
therein on the meaning of the word " void " in Art. 13(1) thus, at
page 651:" The majority however held that the word "void" in
article 13(1), so far as existing laws Were concerned, could not be held to
obliterate them from the statute book, and could not make such laws void
altogether, because in its opinion article 13 had not been given any (1) [1951]
S.C. R. 228.
33 retrospective effect. The majority however
held that after the coming into force of the Constitution the effect of article
13(1) on such repugnant laws was that it nullified them, and made them
ineffectual and nugatory and devoid of any legal force or binding effect. It
was further pointed out in one of the judgments representing the majority view,
that the American rule that if a statute is repugnant to the Constitution the
statute is void from its birth, has no application to cases concerning
obligations incurred or rights accrued in accordance with an existing law that
was constitutional in its inception, but that if any law was made after the
26th January, 1950, which was repugnant to the Constitution, then the same rule
shall have to be followed in India as followed in America. The result therefore
of this pronouncement is that the part of the section of an existing law which
is unconstitutional is not law, and is null and void. For determining the
rights and obligations of citizens the part declared void should be notionally
taken to be obliterated from the section for all intents and purposes, though
it may remain written on the statute book and be a good law when a question
arises for determination of rights and obligations incurred prior to 26th
January, 1950, and also for the determination of rights of persons who have not
been given fundamental rights by the Constitution. Thus, in this situation,
there is no scope for introducing terms like " relatively void "
coined by American Judges in construing a Constitution which is not drawn up in
similar language and the implications of which are not quite familiar in this
country." The learned Judge, as we have already pointed out, rejected the
distinction made by Venkatarama Aiyar, J., between lack of legislative power
and the abridgment of the fundamental rights. Though that question did not
directly arise, the learned Judge expressed his view on the scope of Art. 13(2)
at page 653 thus:
" 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 5 34 article 13(2). That power can only be
exercised subject to the prohibition contained in article 13(2). On the
construction of article 13(2) there was no divergence of opinion between the
majority and the minority in Keshava Madhava Menon v. The State of Bombay
(supra). 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." Das, J., as he then was, in his dissenting
judgment differed from the majority on other points but does not appear to have
differed from the aforesaid views expressed by Mahajan, C. J., as regards the
scope of Keshava Madhava Menon's Case on the meaning of the word " void
" in Art. 13(1). This judgment is therefore an authority on two points and
contains a weighty observation on the third : (i) when the law-making power of
a State is restricted by written fundamental law, then any law opposed to the
fundamental law is in excess of the legislative authority and is thus a
nullity; (ii) even in the case of a statute to which Art.
13(1) applies, though the law is on the
statute book and be a good law, when a question arises for determination of
rights and obligations incurred prior to January 26, 1950, the part declared
void should be nationally taken to be obliterated from the section for all
intents and purposes ;
and (iii) on the construction of Art. 13(2),
the law made in contravention of that clause is a nullity from its inception.
The next case is a direct one on the point
and that is Saghir Ahmad v. The State. of U. P. (1). There, the U.P. Road
Transport Act (11 of 1951) was passed enabling the State to run stage carriage
service on a route or routes to the exclusion of others. Under that Act, the
State Government made a declaration extending the Act to a particular area and
issued a notification setting out what purported to be a scheme for the
operation of the stage carriage service on certain routes. At the time the said
Act was passed, the State had no such power to deprive a citizen of his (1)
[1955] 1 S.C.R. 707.
35 right to carry on his transport service.
But after the Act, Art. 19(1) was amended by the Constitution (First
Amendment)Act, 1951, enabling the State to carry on any trade or business
either by itself or through, corporations owned or controlled by the State to
the. exclusion of private citizens wholly or in part. One of the questions
raised was whether the amendment of the Constitution could be invoked to
validate the earlier legislation. The Court held that the Act when passed was
unconstitutional and therefore it was still-born and could not be vitalised by
the subsequent amendment of the Constitution removing the constitutional
objections but must be re-enacted. At page 728, Mukherjea, J., as he then was,
who delivered the judgment of the Court, has given the reasons for the said
view :" As Professor Cooley has stated in his work on Constitutional
Limitations (Vol. 1, page 304 note.) " a statute void for
unconstitutionality is dead and cannot be vitalised by a subsequent amendment
of the Constitution removing the constitutional objection but must be
re-enacted ". We think that this is sound law and our conclusion is that
the legislation in question which violates the fundamental right of the
appellants under article 19(1) (g) of the Constitution and is not shown to be
protected by clause (6) of the article, as it stood at the time of the
enactment, must be held to be void under article 13(2) of the
Constitution." This is a direct authority on the point, without a dissenting
voice, and we are bound by it.
The decision given in Bhikaji Narain's Case,
(1) is strongly relied upon by the learned Advocate General in support of his
contention. Shortly stated, the facts in that case were: Before the
Constitution, the C. P. & Berar Motor Vehicles (Amendment) Act, 1947 (C. P.
III of 1948) amended the Motor Vehicles Act, 1939 (Central Act IV of 1939) and
conferred extensive powers on the Provincial Government including the power to
create a monopoly of the motor transport business in its favour to the
exclusion of all motor transport operators. It was contended by the affected
parties that by reason of Art. 13(1) of the Constitution, (1) [1955] 2 S.C.R.
589.
36 the Act became void. On behalf of the
State, it was argued that the Constitution (First Amendment) Act, 1951, and the
Constitution (Fourth Amendment) Act, 1955, had the effect of removing the
inconsistency and the Amendment Act III of 1948 became operative again. This
Court unanimously accepted the contention of the State. This decision is one
given on a construction of Art. 13(1) of the Constitution and it is no
authority on the construction and scope of Art. 13(2) of the Constitution. The
reason for the decision is found in the following passages in the judgment, at
page 598:
" ..................... on and after the
commencement of the Constitution the existing law, as a result of its becoming
inconsistent with the provisions of article 19(1)(g) read with clause (6) as it
then stood, could not be permitted to stand in the way of the exercise of that
fundamental right.
Article 13(1) by reason of its language
cannot be read as having obliterated the entire operation of the inconsistent
law or having wiped it out altogether from the statute book ............... In
short, article 13(1) had the effect of nullifying or rendering the existing law
which had become inconsistent with article 19(1) (g) read with clause (6) as it
then stood ineffectual, nugatory and devoid of any legal force or binding
effect only with respect to the exercise of the fundamental right on and after
the date of the commencement of the Constitution. Therefore, between the 26th
January, 1950, and 18th June, 1951, the impugned Act could not stand in the way
of the exercise of the fundamental right of a citizen under Article 19(1)(g).
The true position is that the impugned law became, as it were, eclipsed, for
the time being, by the fundamental right The 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 stillborn as it were 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 37 against the citizens
that they remained in a dormant or moribund condition." The aforesaid
passages are only the restatement of the law as enunciated in Keshavan Madhava
Menon's a Case(1) reaffirmed in Pesikaka's Case (2) and an extension of the
same to meet a different situation. A pre-Constitution law, stating in the
words of Das, J., as he then was, exists notwithstanding that it does not exist
with respect to the future exercise of the fundamental rights. That principle
has been extended in this decision, by invoking the doctrine of eclipse. As the
law existed on the statute book to support pre-Constitution acts, the Court held
that the said law was eclipsed for the time being by one or other of the
fundamental rights and when the shadow was removed by the amendment of the
Constitution, the impugned Act became free from all blemish or infirmity. The
Legislature was competent to make the law with which Pesikaka's Case (2) was
concerned at the time it was made. It was not a case of want of legislative
power at the time the Act was passed, but one where in the case of a valid law
supervening circumstances cast a cloud. To the other class of cases to which
Art. 13 (2) will apply, the views expressed by the American authorities, by
Mahajan, J., as he then was, in Pesikaka's Case, and by Mukherjea, J., as he
then was, in Saghir Ahmad's Case (3 ) directly apply. To the facts in Bhikaji
Narain's Case, (4) the principle laid down in Keshavan Madhava Menon's Case is
attracted. But it is said that the observations of the learned Judges are wide
enough to cover the case falling under Art. 13 (2) of the Constitution and
further that a logical extension of the principle laid down would take in also
a case falling under Art. 13(2). The first contention is based upon the
following passage: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 could have no application to our
Constitution.
All laws existing or future (1) [1951] S.C.R.
228.
(2) [1955] 1 S.C.R. 613, (3) [1955] 1 S.C.R.
707.
(4) [1955] 2 S.C.R. 589.
38 which are inconsistent with the provisions
of Part III of our Constitution, are by express provisions 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." The first part of the said observation
states nothing more than the plain import of the provisions of Art. 13(1) and
(2), namely, that they render laws void only I to the extent' of such
inconsistency. The second part of the observation directly applies only to a
case covered by Art.
13(1), for the learned Judges say that the
laws exist for the purposes of pre-Constitution rights and liabilities and they
remain operative even after the Constitution as against non-citizens. The said
observation could not obviously apply to post-Constitution laws. Even so, it is
said that by a parity of reasoning the post-Constitution laws are also void to
the extent of their repugnancy and therefore the law in respect of non-citizens
will be oil the statute book and by the application of the doctrine of eclipse,
the same result should flow in its case also. There is some plausibility in
this argument, but it ignores one vital principle, viz., the existence or the
non-existence of legislative power or competency at the time the law is made
governs the situation. There is no scope for applying the doctrine of eclipse
to a case where the law is void ab initio in whole or in part. That apart, in
the present case-we do not base our decision on that-Art. 31(1) infringed by
the Act, applies to all persons irrespective of whether they are citizens or
non-citizens, and. therefore the entire law was void ab initio. That judgment,
therefore, does not support the respondent as it has bearing only on the
construction of Art. 13(1) of the Constitution.
In Ram Chandra Palai v. State of Orissa (1),
this Court followed the decision in Bhikaji Narain's Case (2) in the case of a
pre-Constitution Act. In Pannalal (1) [1956] S.C.R. 28.
(2) [1955] 2 S.C.R. 589.
39 Binjraj v. Union of India (1), Bhagwati,
J., quoted, with approval the extract from Keshavan Madhava Menon's Case (2),
wherein it was held that Art. 13(1) has only the effect of nullifying or
rendering all inconsistent existing laws ineffectual or nugatory or devoid of
any legal force or binding effect only with respect to the fundamental rights
on or after the commencement of the Constitution.
The learned Advocate General relied upon
certain decisions in support of his contention that the word " void "
in Arts.
13(1) and 13 (2) means only "
unenforceable " against persons claiming fundamental rights, and the law
continues to be in the statute book irrespective of the fact that it was made
in infringement of the fundamental rights. The observations of Mukherjea, J.,
as he then was, in Chiranjit Lal Chowdhuri v. The Union of India (3) are relied
on and they are:
" Article 32, as its provisions show, is
not directly concerned with the determination of constitutional validity of
particular legislative enactments. What it aims at is the enforcing of
fundamental rights guaranteed by the Constitution, no matter whether the
necessity for such enforcement arises out of an action of the executive or of
the legislature....................... The rights that could be enforced under
article 32 must ordinarily be the rights of the petitioner himself who complains
of infraction of such rights and approaches the court for relief." He also
relies upon the, decision of Das, J., as he then was, in The, State of Madras
v. Srimathi ChamPakam Dorairajan (4), wherein the learned Judge states thus, at
page 531 :
" The directive principles of the State
Policy, which by article 37 are expressly made unenforceable by a Court, cannot
override the provisions found in Part III which, notwithstanding other
provisions, are expressly made enforceable by appropriate Writs, Orders or
directions under article 32." Basing his argument on the aforesaid two
observations, (1) [1957] S.C.R. 233.
(2) [1951] S C.R. 228.
(3) [1950] S.C.R. 869, 899.
(4) [1951] S.C.R. 525, 40 it is contended
that in the case 'of both the directive principles and the fundamental rights,
it must be held that the infringement of either does not invalidate the law,
but only makes the law unenforceable. This argument, if we may say so, mixes up
the Constitutional invalidity of a statute with the procedure to be followed to
enforce the fundamental rights of an individual. The Constitutional validity of
a statute depends upon the existence of legislative power in the State and the
right of a person to approach the Supreme Court depends upon his possessing the
fundamental right, i.e., he cannot apply for the enforcement of his right
unless it is infringed by any law. The cases already considered supra clearly
establish that a law, whether pre-Constitution or post-Constitution, would be
void and nugatory in so far as it infringed the fundamental rights. We do not
see any relevancy in the reference to the directive principles; for, the
legislative power of a State is only guided by the directive principles of
State Policy.
The directions, even if disobeyed by the State,
cannot affect the legislative power of the State, as they are only directory in
scope and operation. The result of the aforesaid discussion may be summarized
in the following propositions: (i) whether the Constitution affirmatively
confers power on the legislature to make laws subject-wise or negatively
prohibits it from infringing any fundamental right, they represent only two
aspects of want of legislative power; (ii) the Constitution in express terms
makes the power of a legislature to make laws in regard to the entries in the
Lists of the Seventh Schedule subject to the other provisions of the
Constitution and thereby circum cribs or reduces the said power by the
limitations laid down in Part III of the Constitution; (iii) it follows from
the premises that a law made in derogation or in -excess of that power would be
ab initio void wholly or to the extent of the contravention as the case may be
; and (iv) the doctrine of eclipse can be invoked only in the case of a law
valid when made, but a shadow is cast on it by supervening constitutional
inconsistency or, supervening existing statutory 41 inconsistency; when the
shadow is removed, the impugned Act is freed from all blemish or infirmity.
Applying the aforesaid principles to the present case, we hold that the
validity of the Act could not be tested on the basis of the Constitution
(Fourth Amendment) Act, 1955, but only on the terms of the relevant Articles as
they existed prior to the Amendment.
We shall now proceed to consider the first
contention of Mr. Nambiar. He contends that the Motor Vehicles (Amendment) Act
(100 of 1956) passed by Parliament was wholly repugnant to the provisions of
the U. P. Act and therefore the law became void under the provisions of Art.
254(1) of the Constitution, with the result that at the present time there is
no valid law where under the State can prohibit the appellants exercising their
fundamental right under the Constitution, namely, carrying on the business of
motor transport.
Mr. Naunit Lal bases his case on the proviso
to Art. 254(2) of the Constitution rather than on cl. (1) thereof. He contends
that by reason of the Amending Act, the U. P. Act was repealed in to; and
because of Section 68B, the operation of the provisions of the General Clauses
Act saving things done under the repealed Act was excluded. The learned
Advocate General attempted to meet the double attack by pressing on us to hold
that there was no repugnancy at all between the provisions of the Central Act
and the U. P. Act and therefore the U. P. Act had neither become void nor was
repealed by necessary implication by the Central Act.
We shall now examine the provisions of Art.
254(1) and 254(2).
Article 254:
"(1) If any provisions of a law made by
the Legislature of a State is repugnant to any provision of a law made by
Parliament which Parliament is competent to enact, or to any provision of an
existing law with respect to one of the matters enumerated in the Concurrent
List, then, subject to the provisions of clause (2), the law made by Parliament,
whether passed before or after the law made by the Legislature of 6 42 such
State, or, as the case may be, the existing law, shall prevail and the law made
by the Legislature of the State shall, to the extent of the repugnancy, be
void.
(2) Where a law made by the Legislature of a
State with respect to one of the matters enumerated in the Concurrent List
contains any provision repugnant to the provisions of an earlier law made by
Parliament or an existing law with respect to that matter, then, the law so
made by the Legislature of such State shall, if it has been reserved for the
consideration of the President and has received his assent, prevail, in that
State.
Provided that nothing in this clause shall
prevent Parliament from enacting at any time any law with respect to the same
matter including a law adding to, amending, varying or repealing the law so
made by the Legislature of the State." Article 254(1) lays down a general
rule. Clause (2) is an exception to that Article and the proviso qualifies the
exception. If there is repugnancy between the law made by the State and that
made by Parliament with respect to one of the matters enumerated in the
Concurrent List, the law made by Parliament shall prevail to the extent of the
repugnancy and the law made by the State shall, to the extent of such
repugnancy, be void. Under cl. (2), if the Legislature of a State makes a
provision repugnant to the provisions. of the law made by Parliament, it would
prevail if the legislation of the State received the assent of the President.
Even in such a case, Parliament may subsequently either amend, vary or repeal
the law made by the Legislature of a State. In the present case, the Uttar
Pradesh Legislative Assembly, after obtaining the assent of the President on
April 23, 1955, passed the U. P. Act. Parliament subsequently passed the Motor
Vehicles (Amendment) Act (100 of 1956).
Therefore, both the clauses of Art. 254 would
apply to the situation. The first question is whether the provisions of the
Union law, i.e., the Motor Vehicles (Amendment) Act (100 of 1956), are
repugnant to the provisions of the U. P. Act and if so to 43 what extent.
Before we proceed to examine the provisions of the two Acts, it may be
convenient to notice the law pertaining to the rule of repugnancy.
Nicholas in his Australian Constitution, 2nd
Edition, page 303, refers to three tests of inconsistency or repugnancy :"(1)
There may be inconsistency in the actual terms of the competing statutes;
(2) Though there may be no direct conflict, a
State law may be inoperative because the Commonwealth law, or the award of the
Commonwealth Court is intended to be a complete exhaustive code; and (3) Even
in the absence of intention, a conflict may arise when both State and
Commonwealth seek to exercise their powers over the same subject matter."
This Court in Ch. Tika Ramji v. The State of Uttar Pradesh (1) accepted the
said three rules, among others, as useful guides to test the question of
repugnancy. In Zaverbhai Amaidas v. The State of Bombay (2), this Court laid
down a similar test. At page 807, it is stated:
" The principle embodied in section
107(2) and Article 254(2) is that when there is legislation covering the same
ground both by the centre and by the Province, both of them being competent to
enact the same, the law of the Centre should prevail over that of the
State."Repugnancy between two statutes may thus be ascertained on the
basis of the following three principles:
(1) Whether there is direct conflict between
the two provisions ;
(2) Whether Parliament intended to lay down
an exhaustive code in respect of the subject matter replacing the Act of the
State Legislature; and (3) Whether the law made by Parliament and the law made
by the State Legislature occupy the same field.
We shall now examine the provisions of both
the Acts in some detail in order to ascertain the extent of the repugnancy
between them. The Scheme of (1) [1956] S.C.R. 393.
(2) [1955] 1 S.C.R. 799.
44 the U. P. Act may be summarized thus:
Under the U. P. Act " State Road Transport Service " is defined to
mean transport service by a public service vehicle owned by the State
Government. Under s. 3:
" 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 be run and operated partly by the State Government
and partly by others under and in accordance with the provisions of the
Act".
After the publication of the notification
under s. 3, the State Government or, if the State Government so directs, the
Transport Commissioner publishes in such manner as may be specified a scheme as
to the State Road Transport Service providing for all or any of the matters
enumerated in cl (2) of s. 4. Clause (2), of s. 4 directs that, among others,
the scheme should 'provide the particulars of the routes or portions thereof
over which and the date on which -the State Transport Service will commence to
operate, the roads in regard to which private persons may be allowed to operate
upon, the routes that will be 'served by the State Government in conjunction
with railways , the curtailment of the routes covered by the existing -permits
or transfer of the permits to other route or routes. Section 5 enjoins the
Transport Commissioner to give notice to the permit-holder requiring him to
lodge a statement in writing whether he agrees to the transfer of the permit
and in cl. (2) thereof, it is prescribed that in case he accepts the transfer,
he is nit entitled to any compensation, but if he does not agree to the transfer,
his permit will be cancelled subject to his right to get compensation under the
Act. Under s. 6 any person whose interests are affected may within 30 days from
the publication of the scheme, file objections 45 on it before the Transport
'Commissioner who shall forward them to the Board constituted under s. 7,
consisting of the Commissioner of a Division, Secretary to Government in the
Transport Department and the Transport Commissioner. The Board shall consider
the objections, if any, forwarded under s. 6 and may either confirm, modify or
alter the scheme.
The Scheme so confirmed or modified or
altered under s. 7 shall be published in the Official Gazette. Any scheme
published under s. 8 may at any time be cancelled or modified or altered by the
State Government. Section 10 gives the consequences of the publication under s.
8.
Section 11 provides compensation for
premature cancellation of permits or curtailment of route or routes, as may be
determined in accordance with the principles specified in Schedule 1. In
Schedule 1, compensation is payable as follows:
" (1) For every complete month or Rupees
one part of a month exceeding fifteen days of hundred. the unexpired period of
the permit.
(2) For part of a month not exceed Rupees
fifteen days of the unexpired fifty.
period of a permit.
Provided always that the amount of
compensation shall in no case be less than rupees two hundred." Section 12
authorises the State Government, in a case where the permit has been cancelled,
to purchase the motor vehicle covered by it if the holder of the permit offers
to sell, upon terms and conditions laid down in Schedule 11 provided the
vehicle is of the type of manufacture and model notified by the State
Government and provided secondly that the vehicle is mechanically in a sound
condition or otherwise declared fit by the Transport Commissioner or his
nominee.
Sections 13 to 18 provide for a State
Machinery for the development of motor transport industry. Sections 19 to 22
are provisions which are consequential in nature. Shortly stated, under the U.
P. Act the State Government initiate a scheme providing for the nationalization
of the road transport in whole or in part; the objections filed by the persons
affected by the scheme are heard by a 46 Board of three officers appointed by
the State Government;
the Board after hearing the objections may
confirm, modify or alter the scheme; the scheme so confirmed may be cancelled,
modified or altered by ,the State Government by following the same procedure
adopted for framing the original scheme; and the holders of permits cancelled
may be given new' permits if they choose to accept and if not they will be paid
such compensation as prescribed under the Act.
Under the Amendment Act 100 of 1956, whereby
a new chapter was inserted in the Motor Vehicles Act of 1939, the procedure
prescribed is different. Under s. 68-A of that Act, 'State Transport
Undertaking' is defined to mean any undertaking providing road transport
service, where such undertaking is carried on by,-(i) the Central Government or
a State Government; (ii) any Road Transport Corporation established under s. 3
of the Road Transport Corporation Act, 1950; (iii) the Delhi Transport
Authority established under s. 3 of the Delhi Road Transport Authority Act,
1950; and (iv) any municipality or any corporation or company owned or
controlled by the State Government. Under s. 68C, the State Transport
Undertaking initiates a scheme if it is of opinion that for the purpose of
providing an efficient, adequate, economical and properly coordinated road
transport service, it is necessary in the public interest that road transport
service in general, or any particular class of such service in relation to any
area or route or portion thereof should be run and operated by the State
Transport Undertaking, whether to the exclusion complete or partial, of other
persons or otherwise. Section 68D says that any person affected by the Scheme
may file objections to the said Scheme before the State Government; the State
Government may, after considering the objections and after giving an
opportunity to the objectors or their representatives and the representatives
of the State Transport Undertaking to be heard in the matter, approve or modify
the Scheme. Any Scheme published may at any time be cancelled or modified by
the State Transport Undertaking following the same procedure; for the purpose
of giving effect 47 to the Scheme, the Regional Transport Authority, inter
alia, may cancel the existing permits or modify the terms of the existing
permits. Section 68G lays down the principles and method of determination of
compensation. Under that section compensation is, payable for every completed
month or part of a month exceeding fifteen days of the unexpired period of the
permits at Rs. 200 and for part of a month not exceeding fifteen days of the
unexpired period of the permit at Rs. 100. Under the Amending Act, the gist of
the provisions is that the Scheme is initiated by the State Transport
Undertaking carried on by any of the four institutions mentioned in s. 68A,
including the State Government;
objections are filed by the affected parties
to the Scheme, the affected parties and the Undertaking are heard by the State
Government, which, after hearing the objections, approves or modifies the
Scheme. There is no provision for transfer of permits to some other routes, or
for the purchase of the buses by the State Government. Compensation payable is
twice that fixed under the U. P. Act. One important thing to be noticed is that
the U. P. Act is prospective, i. e., comes into force only from the date of the
passing of the Amending Act and the procedure prescribed applies only to
schemes that are initiated under the provisions of the U. P. Act.
A comparison of the aforesaid provisions of
the U. P. Act and the Amending Act indicates that both the Acts are intended to
operate, in respect of the same subject matter in the same field. The un-amended
Motor Vehicles Act of 1939 did not make any provision for the nationalization
of transport services, but the States introduced amendments to implement the
scheme of nationalization of road transport.
Presumably, Parliament with a view to
introduce a uniform law throughout the country avoiding defects found in
practice passed the Amending Act inserting Chapter IV-A in the Motor Vehicles
Act, 1939. This object would be frustrated if the argument that both the U. P.
Act and the Amending Act should co-exist in respect of schemes to be framed
after the Amending Act, is accepted. Further the authority to initiate 48 the
scheme, the manner of doing it, the authority to hear the objections, the
principles regarding payment of compensation under the two Acts differ in import
ant details from one another. While in the U. P. Act the scheme is initiated by
the State Government, in the Amendment Act, it is proposed by the State
Transport Undertaking. The fact that a particular undertaking may be carried on
by the State Government also cannot be a reason to equate the undertaking with
the State Government; for under s. 68A the undertaking may be carried on not
only by the State Government but by five other different institutions. The
undertaking is made a statutory authority under the Amending Act with a right
to initiate the scheme and to be heard by the State Government in regard to
objections filed by the persons affected by the scheme. While in the U. P. Act
a Board hears the objections, under the Amending Act the State Government
decides the disputes. The provisions of the scheme, the principles of
compensation and the manner of its payment also differ in the two Acts. It is
therefore manifest that the Amending Act occupies the same field in respect of
the schemes initiated after the Amending Act and therefore to that extent the
State Act must yield its place to the Central Act. But the same cannot be said
of the schemes framed under the U. P. Act before the Amending Act came into
force. Under Art. 254(1) " the law made by Parliament, whether passed
before or after the law made by the Legislature of such State............ shall
prevail and the law made by the legislature of the State shall, to the extent
of the repugnancy, be void." Mr. Nambiar contends that, as the U. P. Act
and the Amending Act operate in the same field in respect of the same
subject-matter, i. e., the nationalization of bus transport, the U. P. Act
becomes void under Art. 254(1) of the Constitution. This argument ignores the
crucial words " to the extent of the repugnancy " in the said clause.
What is void is not the entire Act but only to the extent of its repugnancy
with the law made by Parliament. The identity of the field may relate to the
pith and substance of the subject-matter 49 and also the period of its.
operation. When both coincide, the repugnancy is complete and the whole of the
State Act becomes void. The operation of the Union Law may be entirely
prospective leaving the State Law to be effective in regard to thing already,
done. Sections 68C, 68D and 68E, inserted by the Amending Act, clearly show
that those sections are concerned only with a scheme initiated after the
Amending Act came into force. None of the sections, either expressly or by
necessary implication, indicates that the schemes already finalised should be
reopened and fresh schemes be framed pursuant to the procedure prescribed there
under. Therefore, under Art. 254(1), the law under the U. P. Act subsists to
support the schemes framed there under and it becomes void only in respect of schemes
framed under the Central Act. A similar question arose in the context of the
application of Art. 13(1) to a pre-Constitution law which infringed the
fundamental rights given under the Constitution.
In Keshavan Madhava Menon's Case (1), which
we have referred to in a different context the question was whether Indian
Press (Emergency Powers) Act, 1931, was void as infringing the provisions of
Art. 13(1) of the Constitution;, and the Court held that the said Act was valid
and would continue to be in force to sustain a prosecution launched for an act
done be fore the Constitution. In the words of Das, J., as he then was:
" Such laws exist for all past
transactions and for enforcing all rights and liabilities accrued before the
date of the Constitution." (p. 234).
" So far as the past acts are concerned
the law exists, notwithstanding that it does not exist with respect to the
future exercise of fundamental rights.", (pp. 235-236).
Article 13(1), so far as it is relevant to
the present inquiry, is pari materia with the provisions of Art. 254(1) of the
Constitution. While -under Art. 13(1) all the preConstitution laws, to the
extent of their inconsistency with the provisions of Part III, are void, under
(1) [1951] S.C.R. 228.
7 50 Art. 254(1) the State Law to the extent
of its repugnancy to the law made by,Parliament is void. If the
pre-Constitution law exists for the post-Constitution period for all the past
transactions, by the same parity of reasoning, the State law subsists after the
making of the law by Parliament, for past transactions. In this view, both the
laws can co-exist to operate during different periods.
The same decision also affords a solution to
the question mooted, namely, whether if the law was void all the completed
transactions fall with it. Mahajan, J., as he then was, draws a distinction
between a void Act and a repealed Act vis-a-vis their impact on past
transactions.
At page 251, the learned Judge says:
The expression is void " has no larger
effect on the statute so declared than the word " repeal ". The
expression " repeal " according to common law rule obliterates a
statute completely as if it had never been passed and thus operates
retrospectively on past transactions in the absence of a saving clause or in
the absence of provisions such as are contained in the Interpretation Act-,
1889, or in the General Clauses Act, 1897, while a provision in a statute that
with effect from a particular date an existing law would be void to the extent
of the repugnancy has no such retrospective operation and cannot affect pending
prosecutions or actions taken under such laws. There is in such a situation no
necessity of introducing a saving clause and it does not need the aid of a
legislative provision of the nature contained in the Interpretation Act or the General
Clauses Act. To hold that a prospective declaration that a statute is void
affects pending oases is to give it indirectly retrospective operation and that
result is repugnant to the clear phraseology employed, in the various articles
in Part III of the Constitution." The said observation directly applies to
a situation created by Art.254(1). As the U. P. Act was void from the date of
the Amending Act, actions taken before that date cannot be affected. In
whichever way it is looked at, we are satisfied that in the present case, the
scheme already framed subsists and the 51 State law exists to sustain it even
after the Parliament made the law. In this view we reject the contention of Mr.
Nambiar based on Art 254(1)of the Constitution.
The alternative argument advanced by Mr.
Naunit Lal may now be considered. It is not disputed that under the proviso to
Art. 254(2), the Parliament can repeal the law made by the Legislature of a
State and that Parliament can repeal the repugnant State law whether directly or
by necessary implication. Assuming that Parliament in the present case by
enacting the Amending Act repugnant to the State law with respect to the same
subject-matter i. e., nationalization of road transport, impliedly repealed the
State law, would it have the effect of effacing the scheme already made ? If
there was a repeal, the provisions of s. 6 of the General Clauses Act of 1897
are directly attracted. The relevant part of s. 6 of the General Clauses Act
reads:
" Where this Act, or any Central Act or
Regulation made after the commencement of this Act, repeals any enactment
hitherto made or hereafter to be made, then, unless a different intention
appears, the repeal shall not(a) revive anything not in force or existing at
the time at which the repeal takes effect; or (b) affect the previous operation
of any enactment so repealed or anything duly done or suffered there under."
The express words used in clause (b)certainly take in the scheme framed under
the -repealed Act. It was a thing duly done under the repealed Act. But it is
said that a comparison of the provisions of s. 6 with those of s. 24 would
indicate that anything duly done excludes the scheme.
Section 24 deals with the continuation of
orders, schemes, rules, forms or bye-laws. made or issued under the repealed
Act. But that section applies only to the repeal of a Central Act but not a
State Act. But the exclusion of the scheme is sought to be supported on the
basis of the argument that in the case of a repeal of a Central Act, both the
sections apply and, in that context, a reasonable 52 interpretation would be to
exclude what is specifically provided for from the general words used in s. 6.
Whatever justification there may be in that context, there is none when we are
concerned with the repeal of a State Act to which s. 24 does not apply. In that
situation, we have to look to the plain words of s. 6 and ascertain whether
those words are comprehensive enough to take in a scheme already framed. We
have no doubt that a scheme framed is a thing done under the repealed Act.
A further contention is raised on the basis
of the provisions of s. 68B to achieve the same result, namely, that the said
section indicates a different intention within the meaning of s. 6 of the General
Clauses Act. Section 68B reads:
" The provisions of this Chapter and
rules and orders made there under shall have effect notwithstanding anything
inconsistent therewith contained in Chapter IV of this Act or in any other law
for the time being in force or in any instrument having effect by virtue of any
such law. " This section embodies nothing more than the bare statement
that the provisions of this Act should prevail notwithstanding the fact that
they are inconsistent with any other law. We have expressed our view that the
provisions of this Act are prospective in. operation and, therefore, nothing in
those sections, which we have already analysed, is inconsistent with the
provisions of the State law in regard to its operation with respect to.
transactions completed there under. Assuming without deciding that the word
'instrument' in s. 68B includes a scheme, we do not see any provisions in the
Act which are inconsistent with the scheme framed under the State Act. The
provisions starting from s. 68C only contemplate a scheme initiated after the
Amending Act came into force and therefore they cannot obviously be
inconsistent with a scheme already framed under the State Act before the
Amending Act came into force. We, therefore, hold that s. 6 of the General
Clauses Act saves the scheme framed under the U. P. Act.
The next contention of the learned Counsel
Mr. 53 Nambiar, namely, that the scheme being a prescription for the future, it
has a continuous operation even after the Amending Act became law, with the
result that after the Amending Act, there was no valid law to sustain it, need
not detain us; for, we have held that the State law subsists even after the
Amending Act to sustain the things done under the former Act.
This leads us to the contention of the
learned Advocate General that even if the Constitution (Fourth Amendment) Act,
1955, could not be relied on to sustain the validity of the U. P. Act, there
was no deprivation of property of the appellants within the meaning of the
decisions of this Court in The State of West Bengal v. Subodh Gopal Bose (1);
Dwarkadas Shrinivas of Bombay v. The Sholapur
Spinning & Weaving Co. Ltd. (2) and Saghir Ahmad's Case (3). Those cases
have held that cls. (1) and (2) of Art. 31 relate to the same subject matter
and that, though there is no actual transfer of property to the State, if by
the Act of the State, an individual has been substantially dispossessed or
where his right to use and enjoy his property has been seriously impaired or
the value of the property has been materially reduced, it would be acquisition
or taking possession within the meaning of el. (2) of the said Article. After a
faint attempt to raise this question, the learned Advocate General conceded
that in view of the decision in Saghir Ahmad's Case he could not support his
argument to the effect that the State did not deprive the petitioners of their
interest in a commercial undertaking.
In the said case, this Court held in express
terms that U. P. Transport Act, 1951, which, in effect prohibited the
petitioners therein from doing their motor transport business deprived them of
their property or interest in a commercial undertaking within the meaning of
Art. 31(2) of the Constitution. Mukherjea J., as he then was, observed at page
728 :
" It is not seriously disputed on behalf
of the respondents that the appellants' right to ply motor vehicles for gain
is, in any event, an interest in a (1) [1954] S.C.R. 587. (2) [1954] S.C.R.
674.
(3) [1955] 1 S.C.R. 707.
54 commercial undertaking. There is no doubt
also that the appellants have been deprived--of this interest." The
learned Judge proceeded to state at page 729 :
" In view of that majority decision it
must be taken to be settled now that clauses (1) and (2) of article 31 are not
mutually exclusive in scope but should be, read together as dealing with the
same subject, namely, the protection of the right to property by means of
limitations on the State's.powers, the deprivation contemplated in clause (1)
being no other than acquisition or taking possession of the property referred
to in clause (2). The learned Advocate General conceded this to be the true
legal position after the. pronouncements of this Court referred to above. 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 provisions of article 31(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.
The above observations are clear and
unambiguous and they do not give scope for further argument on the subject. It
follows that if the Act does not provide for compensation, the Act would be
invalid being in conflict with the provisions of Art. 31(2) of the
Constitution.
The next question is whether in fact the
provisions of Art.
31(2) of the Constitution, before the
Constitution (Fourth Amendment) Act, 1955, were complied with. Under Art. 31(2)
no property shall be taken possession of or acquired save for a public purpose
and save by authority of 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 55 given. In The State of West Bengal v. Mrs. Bela
Banerjee (1), Patanjali Sastri, C. J., has defined the meaning of the word I
compensation' at page 563, as under " While it is true that the
legislature is given the discretionary power of laying down the principles
which should govern the determination of the amount to be given to the owner
for the property appropriated, such principles must ensure that what is
determined as payable must be compensation, that is, a just equivalent of what
the owner has been deprived of. Within the limits of this basic requirement of
full indemnification of the expropriated owner, the Constitution allows free
play to the legislative judgment as to what principles should guide the
determination of the amount payable. Whether such principles take into account
all the elements which make up the true value of the property appropriated and,
exclude matters which are to be neglected, is a justiciable issue to be
adjudicated by the Court., This, indeed, was not disputed. " On the basis
of the aforesaid principle, Mr. Nambiar contends that the U. P. Act does not
provide for compensation in the sense of giving the operator deprived of his
interest a just equivalent of what he has been deprived of, or fix any
principles to guide the determination of the amount payable. The U.P. Act, the
argument proceeds, does not provide at all for compensation payable in respect
of the interest of the operator in a commercial undertaking, but only gives
compensation for the unexpired period of the permit. On the other hand, the
learned Advocate General contends that the appellants would be entitled only to
just equivalent of the interest that they are deprived of, namely, the interest
in a commercial undertaking and that the cumulative effect of the provisions of
the U. P. Act is that just equivalent of the said interest is given. As it is
common case that what the Act should give is just compensation for the interest
of the operator in a commercial undertaking, we Shall now examine the
provisions of the U. P. Act to ascertain whether it (1) [1954] S.C.R. 558.
56 provides a quid pro quo for the interest
the operator is deprived of The provisions of the U. P. Act relating to
compensation pay usefully be read at this stage:
Section 5 : " (1) Where the scheme
published under section 4 provides for cancellation of any existing permit
granted under Chapter IV of the Motor Vehicles Act, 1939, or for the transfer
of such permit to any other route or routes the Transport Commissioner shall
cause notice thereof to be served on the permit holder concerned and on any
other persons to whom in his opinion special notice should be given. The notice
shall also require the permit-holder to lodge a statement in writing within the
period to be specified. therein whether he agrees to the transfer of the
permit.
(2) If the permit-holder agrees to the
transfer of his permit, he shall, provided the permit is actually so
transferred ultimately, be not entitled to claim compensation under section 11
but the transference of the permit shall be deemed to be in lieu of compensation
and complete discharge there for of the State Government. Where, however, the
permit-holder does not agree to the transfer, the permit shall, without
prejudice to the right of the permit-holder to get compensation under the said
section be liable to be cancelled." Section 11 :" (1) Where in
pursuance of the Scheme published under section 8 any existing permit granted
under Chapter IV of the Motor Vehicles Act, 1939, is or is deemed to have been
cancelled or the route or routes covered by it are curtailed or are deemed to
have been curtailed, the permit holder shall, except in cases where transfer of
the permit has been agreed to under sub-section (2) of section 5; be entitled
to receive and be paid such compensation by the State Government for and in
respect of the premature cancellation of the permit or, as the case may be, for
curtailment of the route or routes covered by the permit as may be determined
in accordance with the principles specified in Schedule I.
(2) The compensation payable under this
section shall be due as from the date of order of cancellation 57 of the permit
or curtailment of the route covered by the permit.
(3) There shall be paid by the State
Government on the amount of compensation determined under subsection (1)
interest at the rate of two and one-half per cent. from the date of order of
cancellation or curtailment of route to the date of determination of
compensation as aforesaid.
(4)The compensation payable under this
section shall be given in cash.
(5) The amount of compensation to be given in
accordance with the provisions of sub-section (1) shall be determined by the
Transport Commissioner and shall be offered to the permit-holder in full
satisfaction of the compensation payable under this Act and if the amount so
offered is not acceptable to the permit-holder, the Transport Commissioner may
within such time and in such manner as may be prescribed refer the matter to
the District Judge whose decision in the matter shall be final and shall not be
called in question in any Court. " Section 12: " Where a permit
granted under Chapter IV of the Motor Vehicles Act, 1939, has been cancelled or
the route to which the permit relates has been curtailed in pursuance of the
scheme published under section 8, the State Government may if the holder of the
permit offers to sell, choose to purchase the motor vehicles covered by the
permit upon terms and conditions laid down in Schedule II:
Provided, firstly, that the vehicle is of a
type, manufacture and model notified by the State Government; and Provided,
secondly, that the vehicle is in a mechanically sound condition and is
otherwise declared fit by the Transport Commissioner or his nominee.
SCHEDULE I.
"Paragraph 1: The compensation payable
under section 11 of the Act for cancellation of a contract carriage or stage
carriage or public carrier's permit under clause (e) of subsection (1) of
section 10 of the 8 58 Act shall be computed for every' vehicle covered by the
permit as follows, namely:
(1) For every complete month or part Rupees
One Rupees of a month exceeding fifteen hundred days of one the unexpired
period of the permit.
(2) For part of a month not exceeding Rupees
fifteen days of the unexpired period fifty of a permit.
Provided always that the amount of
compensation shall in no case be less than rupees two hundred.
Paragraph 2: The compensation payable under
section 1 1 for curtailment of the route or routes covered by a stage carriage
or public carrier permit under clause (d) of subsection (1) of section 10 of
the Act shall be an amount computed in accordance with the following formula:
Y x A ------R In this formula means the length
in mile by which the route is curtailed.
A means the amount computed in accordance
with Paragraph 1 above.
R means the total length in miles of the
route covered by the permit." The aforesaid provisions constitute an
integrated scheme for paying compensation to the person whose permit is
cancelled.
The gist of the provisions may be stated
thus: The scheme made by the State Government may provide for the cancellation
of a permit, for curtailment of the route or routes or for transfer of the
permit to other routes. Where a transfer of the permit is accepted by the
operator, he will not be entitled to any compensation; if he does not accept,
compensation will be paid to him with interest in respect of the premature
cancellation of the permit, or as the case may be for the curtailment of the
route or routes covered by the permit. The amount of compensation to be' given
shall be determined by the Transport Commissioner in accordance with the
provisions of the Act, and if the amount so 59 offered is not acceptable to the
permit-holder, the Transport Commissioner may, within such time and in such
manner as may be prescribed, refer the matter to the District Judge whose
decision in the matter shall he final.
There is also a provision enabling the
Government to purchase the motor vehicles covered by the permit, if the holder
of the permit offers to sell and if the vehicles satisfy the specifications
laid down in the Act. The question is whether these provisions offer a quid pro
quo for the interest of the petitioners in the commercial undertaking i.e.,
business in motor transport. Let us examine the question from the standpoint of
a business deal.
If the transport business is sold, the seller
gets his value for the assets minus the liabilities and for his good-will.
In the case of a scheme framed under the Act,
the assets are left with the holder of the permit and under certain conditions
the State purchases them. As the scheme is a phased one, it cannot be said, though
there will be difficulties that the assets cannot be sold to other operators.
If a permit is not cancelled but only transferred to another route, it may be
assumed that if the transfer is voluntarily accepted by the permit-holder, he
is satisfied that the route given to him is as good as that on which he was
doing his business. On the other hand, if he chooses to reject the transfer of
his permit to another route and takes compensation, the question is whether the
compensation provided by s. 11 is anything like an equivalent or quid pro quo for
the interest in the commercial undertaking acquired by the State. If cl. (5) of
s. 11 had not been there, we would have had no hesitation to hold that a flat
rate of Rs. 100 or less irrespective of the real loss to the holder would not
be compensation within the meaning of Art. 31(2).
But, in our view, s. 11(5) gives a different
complexion to the entire question of compensation. Under that clause., a
permit-holder aggrieved by the amount of compensation given by the Transport
Commissioner may ask for referring the matter to the District Judge for his
decision in regard to the adequacy of the compensation. This clause is
susceptible of both a strict as well as a 60 liberal interpretation. If it is
strictly construed, it may be held that what the District Judge can give as
compensation is only that which the Transport Commissioner can, under the
provisions of s. 11(1) i. e., at the rates mentioned in the Schedule. But a
liberal interpretation, as contended by the learned Advocate General, can be
given to that clause without doing violence to the language used therein and
that interpretation will carry out the intention of the legislature. If the
jurisdiction of the District Judge relates only to the calculation of figures,
the said clause becomes meaningless in the present context. Section 11 read
with the Schedule gives the rate of compensation, the rate of interest, the
dates from which and up to which the said compensation is to be paid with
interest. The duty of calculating the said amount is entrusted to the Transport
Commissioner who will be a fairly senior officer of the Government. If he made
any mistake in mere calculations, he would certainly correct it if the
permit-holder pointed out the mistake to him. In the circumstances, is it
reasonable to assume that the legislature gave a remedy for the permit holder
to approach the District Judge for the mere correction of the calculated
figures ? It is more reasonable to assume that the intention of the legislature
was to provide prima facie for, compensation at flat rate and realising the
inadequacy of the rule of thumb to meet varying situations, it entrusted the
duty of the final determination of compensation to a judicial officer of the
rank of a District Judge. The provisions of s. 11(5), in our view, are
certainly susceptible of such. an interpretation as to carry out the intention
of the legislature indicated by the general scheme of the provisions. The
crucial words are " if the amount so offered is not acceptable to the
permit-holder ". The amount offered is no doubt the amount calculated in
accordance with s.11(1). But a duty is cast on the Transport Commissioner to
refer the matter to the District Judge if the amount offered is not acceptable
to the permit-holder. The word" acceptable" is of very wide
connotation and it does not limit the objection only to the wrong calculation
under s. 11(1). The permit holder may 61 not accept the amount on the ground
that compensation offered is inadequate and is not a quid pro quo for the
interest of which he is deprived. It is therefore for the District Judge, on
the evidence adduced by both the parties, to decide the proper compensation to
be paid to him in respect of the right of which he is deprived by the
cancellation of the permit. The language of s. 11(5) not only bears the
aforesaid construction but also carries out the intention of the legislature,
for it cannot be imputed to the legislature that it intended to deprive a
valuable interest by giving a nominal amount to the permit-holder.
Section 11(5) speaks of the time limit within
which such reference may be made to the District Judge, but no such rule has
been brought to our notice. We hope and trust that, without standing on any
such technicality, the Transport Commissioner, if so required, will refer the
matter of compensation to the District Judge. Having regard to the entire
scheme of compensation provided by the Act, we hold that the Act provided for
adequate compensation for the interest acquired within the meaning of Art.
31(1) of the Constitution.
It is said that out of the twenty five
appeals appellants in thirteen appeals had accepted to take a transfer of the
permits to different routes; but on behalf of the appellants it is denied that
the acceptance was unequivocal and final.
They say that it was conditional and that, as
a matter of fact, they have not been plying the buses on the transferred routes
and indeed have been operating them only on the old routes. In these
circumstances, we cannot hold that the said appellants accepted the alternative
routes. If they or some of them choose to accept any alternative routes, they
are at liberty to do so, in which event they will not be entitled to any
compensation.
Lastly, the learned Counsel for the
appellants contends that el. (2) of s. 3 of the U. P. Act infringes their
fundamental rights under Art. 31(2) inasmuch as it prevents them from
questioning the validity of the scheme on the ground that it is not for public
purpose. Section 3 reads:
62 (1) Where the State Government is of the
opinion that it is necessary in the interest 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 be run and operated partly by the State Government
and partly by others under and in accordance with the provisions of this Act.
(2) The notification under sub-section (1)
shall be conclusive evidence of the facts stated therein. " The argument
of the learned Counsel on the interpretation of this section appears to be an
after-thought; for the records do not disclose that the appellants attempted to
question the said fact before the Government and they were precluded from doing
so on the basis of cl. (2) of s. (3). We are not, therefore, prepared to allow
the appellants to raise the contention for the first time before us.
The last contention, which is special to
Civil Appeal No. 429 of 1958, is that during the crucial period when the scheme
of nationalization was put through, the appellant had no permit, it having been
cancelled by the order of the appropriate tribunal; but subsequently, after the
scheme was finalised, the said order was set aside by the Appellate Tribunal
retrospectively and therefore the order of the State Government made behind the
back of the appellant does not bind him. The appellant's permit was not renewed
by the Regional Transport Authority. Against the said order, he preferred an
appeal to the State Transport Tribunal, which by an order dated September 6,
1956, allowed the appeal and directed that the appellant's permit be renewed
for three years beginning from November 1, 1953. In disposing of the appear the
State Transport Tribunal observed:
" We are told that in the meantime this
route has been notified and the Government buses are plying 63 on it. The
effect of this order will be that the appellant shall be deemed to be in
possession of a valid permit and he shall have to be displaced after following
the usual procedure prescribed by the U. P. Road Transport Services
(Development) Act." Pursuant to their order, it appears that the Regional
Transport Authority renewed his permit on October 11, 1956 with effect from November 1, 1953 to October 31, 1956. In the circumstances, as the petitioner
was not a permit-holder when the Government made the order, no relief can be
given to him in this appeal. This order will not preclude the appellant in
Civil Appeal No. 429 of 1958, if he has any right, to take appropriate
proceedings against the State Government.
In the result, all the appeals are dismissed
with one set of costs to the State of Uttar Pradesh.
Appeals dismissed.
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