Nos 189 to 193 of 1955
Petitions under Article 32 of the Constitution of India for the enforcement of Fundamental Rights
G section Pathak Rameshwar Nath and Rajinder Narain with him for the petitioners in Petition No 189 of 1955
Rameshwar Nath and Rajinder Narain for petitioners in Petition No 190 of 1955
Sri Narain Andley and Rajinder Narain for petitioners in Petitions Nos
191 to 193 of 1955
T L Shevde Advocate General of Madhya Pradesh I N Shroff with him for respondents in all petitions
September 29
This judgment will dispose of all the five petitions Nos 189 to 193 of 1955 which have been heard together and which raise the same question as to the constitutional validity of the CP  Berar Motor Vehicles Amendment Act 1947 Act III of 1948
The facts are short and simple
Each of the petitioners has been carrying on business as stage carriage operator for a considerable number of years under permits granted under section 58 of the Central Act IV of 1939 as amended by the CP  Berar Motor Vehicles Amendment Act 1947 Act III of 1948
Prior to the amendment section 58 of the Motor tVehicles Act 1939 was in the following terms 581
A permit other than a temporary permit issued under section 62 shall be effective without renewal for such period not less than three years and not more than five years as the Regional Transport Authority may in its discretion specify in the permit
Provided that in the case of a permit issued or renewed within two years of the commencement of this Act the permit shall be effective without renewal 75 for such period of less than three years as the Provincial Government may prescribe
2 A permit may be renewed on an application made and disposed of as if it were an application for a permit Provided that other conditions being equal an application for renewal shall be given preference over new applications for permits
It will be noticed that under the section as it originally stood the permit granted thereunder was for a period of not less than 3 years and not more than 5 years and a permit holder applying for renewal of the permit had other things being equal preference over new applicants for permit over the same route and would ordinarily get such renewal
Very far reaching amendments were introduced by the CP  Berar Motor
Vehicles Amendment Act 1947 into the in its application to Central Provinces and Berar
By section 3 of the amending Act item ii of subsection 1 of section 43 of the Central Act was replaced by the following items  ii fix maximum minimum or specified fares or freights for stage carriages and public carriers to be applicable throughout the province or within any area or any route within the province or iiinotwithstanding anything contained in section 58 or section 60 cancel any permit granted under the Act in respect of a transport vehicle or class of such permits either generally or in any area specified in the notification Provided that no such notification shall be issued before the expiry of a period of three months from the date of a notification declaring its intention to do so Provided further that when any such permit has been cancelled the permit holder shall be entitled to Such compensation as may be provided in the rules or ivdeclare that it will engage in the business o road transport service either generally or in any area specified in the notification
593 The following subsection 3 was added after subsection 2 of section 58 of the Central Act by section 8 of the amending Act namely 3 Notwithstanding anything contained in subsection 1 the Provincial Government may order a Regional Transport Authority or the Provincial Transport Authority to limit the period for which any permit or class of permits is issued to any period less than the minimum specified in the Act
Section 9 of the amending Act added after section 58 a new section reading as follows 58 A Notwithstanding
anything herein before contained the Provincial Government may by order direct any Regional Transport Authority or the Provincial Transport Authority to grant a stage carriage permit to the Provincial Government or any undertaking in which the Provincial Government is financially interested or a permit holder whose permit has been cancelled under section 43 or any local authority specified in the order
The result of these amendments was that power was given to the Government i to fix fares or freights throughout the Province or for any area or for any route ii to cancel any permit after the expiry of three months from the date of notification declaring its intention to do so and on payment of such compensation as might be provided by the Rules iii to declare its intention to engage in the business of road transport generally or in any area specified in the notification iv to limit the period of the license to a period less than the minimum specified in the Act and v to direct the specified Transport Authority to grant a permit inter alia to the Government or any undertaking in which Government was financially interested
It may be mentioned here that in the State of Madhya Pradesh there are two motor transport companies known as C P Transport Services Ltd and Provincial Transport Co Ltd in which at the date of these writ petitions the State of Madhya Pradesh and the Union of India held about 85 per cent
of the share capital
Indeed since the filing of these petitions the entire undertakings of these 594 companies have been purchased by the State of Madhya Pradesh and the latter are now running the services
on some routes for which permits had been granted to them
A cursory perusal of the new provisions introduced by the amending Act will show that very extensive powers were conferred on the Provincial Government and the latter were authorised in exercise of these powers not only to regulate or control the fares or freights but also to take up the entire motor transport business in the province and run it in competition with and even to the exclusion of all motor transport operators
It was in exercise of the powers under the newly added sub section 3 of section 58 that the period of the permit was limited to four months at a time
It was in exercise of powers conferred on it by the new section 43 1 iv that the Notification hereinafter mentioned declaring the intention of the Government to take up certain routes was issued
It is obvious that these extensive powers were given to the Provincial Government to carry out and implement the policy of nationalisation of the road transport business adopted by the Government
At the date of the passing of the amending Act III of 1948 there was no such thing as fundamental rights of the citizens and it was well within the legislative competency of the Provincial Legislature to enact that law
It has been conceded that the amending Act was at the date of its passing a perfectly valid piece of legislation
Then came our Constitution on the 26th January 1950
Part III of the Constitution is headed Fundamental Rights and consists of articles 12 to 35
By article 191 the Constitution guarantees to all citizens the right to freedom under seven heads
Although in article 191 all these rights are expressed in unqualified language none of them however is absolute for each of them is cut down or limited by whichever of the several clauses 2 to 6 of that article is applicable to the particular right
Thus the right to practise any profession or to carry on any occupation trade or business conferred by article 191g was 595 controlled by clause 6 which prior to its amendment to which reference will presently be made ran as follows 6 Nothing in sub clause g of the said clause shall affect the operation of any existing law in so far as it imposes or prevent the State from making any law imposing in the interests of the general public reasonable restrictions on the exercise of the right conferred by the said sub clause and in particular nothing in the said sub clause shall affect the operation of any existing law in so far as it prescribes or empowers any authority to prescribe or prevent the State from making any law prescribing or empowering any authority to prescribe the professional or technical qualifications necessary for practising any profession or carrying on any occupation trade or business
The fundamental rights conferred by articles 14 to 35 are protected by the provisions of article 13 the relevant portions of which are as follows 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
2The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall to the extent of the contravention be void The amending Act III of 1948 was at the commencement of the Constitution an existing law
The new provisions introduced by the Act authorised the Provincial Government to exclude all private motor transport operators from the field of transport business
Prima facie therefore it was an infraction of the provisions of article 19 1 g of the Constitution and would be void under article 131 unless this invasion by the Provincial Legislature of the funda mental right could be justified under the provisions of clause 6 of article 19 on the ground that it imposed reasonable restrictions on the exercise of the right under article 191g in the interests of the general 596 public
In Shagir Ahmad vs The State of UP  Others1 it was held by this Court that if the word restriction was taken and read in the sense of limitation and not extinction then clearly the law there under review which like the amending Act now before us sanctioned the imposition of total prohibition on the right to carry on the business of a motor transport operator could not be justified under article 196
It was further held in that case that if the word restriction in clause 6 of article 19 of the Constitution as in other clauses of that article were to be taken in certain circumstances to include prohibition as well even then having regard to the nature of the trade which was perfectly innocuous and to the number of persons who depended upon business of this kind for their livelihood the impugned law could not be justifled as reasonable
In this view of the matter there is no escape from the conclusion that the amending Act in so far as it was inconsistent with article 19 1 g read with clause 6 of that article became under article 131 void to the extent of such inconsistency and if there were nothing else in the case the matter would have been completely covered by the decision of this Court in that case
On the 18th June 1951 however was passed the Constitution First Amendment Act 1951
By section 31 of that Act for clause 2 of article19 a new sub clause was substituted which was expressly made retrospective
Clause 6 of article 19 was also amended
That clause so amended now reads as follows 6 Nothing in sub clause g of the said clause shall affect the operation of any existing law in so far as it imposes or prevent the State from making any law imposing in the interests of the general public reasonable restrictions on the exercise of the right conferred by the said sub clause and in particular nothing in the said sub clause shall affect the operation of any existing law in so far as it relates to or prevent the State from making any law relating to 1  597 i the professional or technical qualifications necessary for practising any profession or carrying on any occupation trade or business or ii the carrying on by the State or by a corporation owned or controlled by the State of any trade business industry or service whether to the exclusion complete or partial of citizens or otherwise
It will be noticed that clause 6 as amended was not made retrospective as the amended clause 2 had been made
The contention of the respondents before us is that although the amending Act on the authority of our decision in Shagir Ahmad s case supra became on and from the 26th January 1950 void as against the citizens to the extent of its inconsistency with the provisions of article 191g nevertheless after the 18th June 1951 when clause 6 was amended by the Constitution First Amendment Act 1951 the amending Act ceased to be inconsistent with the fundamental right guaranteed by article 191 g read with the amended clause 6 of that article because that clause as it now stands permits the creation by law of State monopoly in respect inter alia of motor transport business and it became operative again even as against the citizens
The petitioners on the other hand contend that the law having become void for unconstitutionality was dead and could not be vitalised by a subsequent amendment of the Constitution removing the constitutional objection unless it was re enacted and reference is made to Prof Cooley s work on Constitutional Limitations Vol
I p 384 Note referred to in our judgment in Shagir Ahmad s case supra and to similar other authorities
The question thus raised by the respondents however was not raised by the learned Advocate General in that case although the notification was published by the U P Government on the 25th March 1953 and the proposed scheme was published on the 7th April 1953 ie long after the Constitution First Amendment Act 1951 had been passed
This question was not considered by this Court in Shagir Ahmad s case for it was there conceded see p 720 of the report that the validity of the U P Act which in this res 598 pect was similar to the C P  Berar Act now under consideration
 was not to be decided by applying the provisions of the amendea clause 6
Nor was this problem raised before or considered by this Court in Behram Khurshed Pesikaka vs The State of Bombay1 We therefore conceive it to be open to us to go into the new question that has now been mooted before us and to consider what effect the amended clause 6 has on the impugned Act
This involves a question of construction of article 13 of the Constitution
The meaning to be given to the word void in article 13 is no longer res integra for the matter stands concluded by the majority decision of this Court in Keshavan Madhava Menon vs The State of Bombay1
We have to apply the ratio decidendi in that case to the facts of the present case
The impugned Act was an existing law at the time when the Constitution came into force
That existing law imposed on the exercise of the right guaranteed to the citizens of India by article 19 1 g restrictions which could not be justified as reasonable under clause 6 as it then stood and consequently under article 13 1 that existing law became void to the extent of such inconsistency
As explained in Keshavan Madhava Menon section case supra the law became void not in toto or for all purposes or for all times or for all persons but only to the extent of such inconsiatency that is to say to the extent it became inconsistent with the provisions of Part III which conferred the fundamental rights on the citizens
It did not become void independently of the existence of the rights guaranteed by Part III
In other words on and after the commencement of the Constitution the existing law as a result of its becoming inconsistent with the provisions of article 191g 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 131 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 1 1955 1 SCR 613
2  599 the statute book
Such law existed for all past tran sactions and for enforcement of rights and liabilities accrued before the date of the Constitution as was held in Keghavan Madhava Menon s case
The law continued in force even after the commencement of the Constitution with respect to persons who were not citizens and could riot claim the fundamental right
In short article 131 had the effect of nullifying or rendering the existing law which had become inconsistent with article 191 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 the 18th June 1951 the impugned Act could not stand in the way of the exercise of the fundamental right of a citizen under article 1901 g
The true positionis that the impugned law became as it were eclipsed for the time being by the fundamental right
The effect of the Constitution First Amendment Act 1951 was to remove I the shadow and to make the impugned Act free from all blemish or infirmity
If that were not SO
 then it is not intelligible what existing law could have been sought to be saved from the operation of article 191g by the amended clause 6 in so faras it sanctioned the creation of State monopoly for ex hypothesi all existing laws creating such monopoly had already become void at the date of the commencement of the Constitution in view of clause 6 as it then stood
The American authorities refer only
to post Constitution laws which were inconsit tent with the provisions of the Constitution
Such laws never came to life but were still born as it were The American authorities therefore cannot full apply to pre Constitution laws which were perfectly valid before the Constitution
But apart from this distinction between re Constitution and post Constitution laws on which however we need not rest on decision it
must be held that these American authorities can have no application to our Constitution All laws existing or future which are inconsistent 76 with the provision s of Part III of our Constitution are by the express provision of article 13 rendered void to the extent of such inconsistency
Such laws were not dead for all purposes
They existed for the purposes of pre Constitution tights and liabilities and they remained operative even after the Constitution as against non citizens
It is only as against the citizens that they remained in a dormant or moribund condition
In our judgment after the amendment of clause 6 of article 19 on the 18th June 1951 the impugned Act ceased to be unconstitutional and became revivified and enforceable against citizens as well as against non citizens
It is true that as the amended clause 6 was not made retrospective the impugned Act could have no operation as against citizens between the 26th January 1950 and the 18th June 1951 and no rights  and obligations could be founded on the provisions of the impugned Act during the said period whereas the amended clause 2 by reason of its being expressly made retrospective had effect even during that period
But after the amendment of clause 6 the impugned Act immediately became fully operative even as against the citizens
The notification declaring the intention of the State to take over the bus routes to the exclusion of all other motor transport operators was published on the 4th February 1955 when it was perfectly constitutional for the State to do so
In our judgment the contentions put forward by the respondents as to the effect of the Constitution First Amendment Act 1951 are well founded and the objections urged against them by the petitioners are untenable and must be negatived
The petitioners then contend that assuming that one impugned Act cannot be questioned on the ground of infringement of their fundamental right under article 191g read with clause 6 of that article there has been another infraction of their fundamental right in that they have been deprived of their property  namely the right to ply motor vehicle  s for gain which is an interest in a commercial undertaking and therefore the impugned Act does Conflict with the provisions of article 31 2 of the Constitution and 601 again they rely on our decision in Shagir Ahmad s case
Here too if there were nothing else in the case this contention may have been unanswerable
But unfortunately for the petitioners there is the Constitution Fourth Amendment Act 1955 which  came into farce on the 27th April 1955 By section 2 of that Act article 31 of the Constitution was amended and for clause 2 of that article the following clauses were substituted 2 No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned and either fixes the amount of the compensation or specifies the principles on which and the mariner in which the compensation is to be determined and given and no such law shall be called in question in any court on the ground that the compensation provided by that law is not adequate
2 A Where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State it shall not be deemed to provide for the compulsory acquisition or requisitioning of property notwithstanding that it deprives any person of his property
Article 31 A of the Constitution was also amended
There can be no question that the amended provisions if they apply save the impugned law for it does not provide for the transfer of the ownership or right to possession of any property and cannot there fore be deemed to provide for the compulsory acquisition or requisitioning of any property
But the petitioners contend as they did with regard to the Constitution First Amendment Act 1951 that these amendments which came into force on the 27th April 1955 are not retrospective and can have no application to the present case
It is quite true that the impugned AN became inconsistent with article 31 as soon as the Constitution came into force on the 26th January 1950 as held by this Court in Shagir Ahamad s case supra and continued to be so inconsistent right 602 up to the 27th April 1955 and therefore under article 131 became void to the extent of such inconsistency 
Nevertheless that inconsistency was removed on and from the 27th April 1955 by the Constitution Fourth Amendment Act 1955
The present writ petitions were filed on the 27th May 1955 exactly a month after the Constitution Fourth Amendment Act
1955 came into force and on a parity of reasoning here in before mentioned the petitioners cannot be permitted to challenge the constitutionality of the impugned Act on and from the 27th April 1955 and this objection also cannot prevail
Learned counsel for the petitioners sought to raise the question as to the invalidity of the impugned Act even before the advent of the Constitution
Prior to the Constitution when there were no fundamental rights section 299 of the Government of India Act 1935 which corresponds to article 31 had been construed by the Federal Court in Rao Bahadur Kunwar Lal Singh vs The Central Provinces and Berar1 and in other cases referred to in Rajah of Bobbili vs The State of Madras2 and it was held by the Federal Court that the word acquisition occurring in section 299 had the limited meaning of actual transference of ownership and not the wide meaning of deprivation of any kind that has been given by this Court in Subodh Gopal Bose s case3 to that word acquisition appearing in article 312 in the light of the other provisions of the Constitution  It is therefore not clear at all that the impugned Act was in conflict With section 299 of the Government of India Act1935
Besides this objection was not taken or even hinted at in the petitions and cannot be permitted to be raised at this stage
The result therefore is that these petitions must be dismissed
In the circumstances of this case we make no order as to costs
1 1944FCR 284
2  193 194


Summary:
The petitioners who carried on their business as stage carriage operators of Madhya Pradesh for a considerable number of years challenged the constitutional validity of the CP  Berar Motor Vehicles Amendment Act 1947 Act III of 1948 which amended the 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
In exercise of the powers conferred by new section 431iv a notification was issued on the 4th of February 1955 declaring the intention of the Government to take up certain routes
The case of the petitioners was that the passing of the Constitution and the grant of fundamental rights rendered the Act void under article 131 being inconsistent with the provisions of articles 191g and 312 and reliance was placed on the decision
of the Supreme Court in Shagir Ahmad vs The State of UP  others
On behalf of the respondents it was contended that although as a result of the said decision the impugned Act was rendered void the Constitution First Amendment Act 1951 and the Constitution Fourth Amendment Act 1955 bad the effect of removing the inconsistency and the Amending Act III of 1948 became operative again
It was however contended on behalf of the petitioners that the impugned Act being void under article 131 was dead and could not be revivified by any subsequent amendment of the Constitution
It must be re enacted
Held that Shagir Ahmad s case had no application and the contentions put forward by the respondents were well founded and must be accepted
That it is well settled that the word void  In article 13 means void to the extent of the inconsistency with a fundamental right and the language of the article makes it clear that the entire operation of an inconsistent Act is not wiped out
It applies to past transactions and the rights and liabilities accruing therefrom and continues even after the commencement of the Constitution to apply to non citizens
Keshavan Madhava Menon vs The State of Bombay 1961 SCR 288 relied on
The true effect of article 131 is to render an Act inconsistent with a fundamental right inoperative to the extent of the inconsistency
It is overshadowed by the fundamental right  and remains dormant but is not dead
With the amendment made in cl
6 of article 19 by the first Amendment Act the provisions of the impugned Act were no longer inconsistent therewith and the result was that the impugned Act began to operate once again from the date of such amendment with this difference that unlike amended clause 2 of article 19 which was expressly made retrospective no rights and obligations could be founded on the provisions of the impugned Act from the date of the Commencement of the Constitution till the date of the amendment
The notification declaring the intention of the State to take over the bus routes to the exclusion of all other motor transport operators was therefore perfectly valid
Shagir Ahmad vs The State of UP  Others  and Behram Khurshed Pesikaka vs The State of Bombay 1965 1 SCR 613 distinguished and held inapplicable
American authorities held inapplicable
Nor can the impugned Act on a parity of reasoning be held to infringe any longer the fundamental rights of the petitioners under article 312 in view of the amendment effectd there in by the Constituation Fourth Amendment Act of 1956 which came into force on the 27th April 1955 these petitions having been filed thereafter and the petitioners could not be allowed to challenge the validity of the impugned Act on that ground
Semble
It is not clear at all that the impugned Act was in conflict with section 299 of the Government of India Act 1935 before the advent of the Constitution