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 15791444158415861589 1631 1632 1634 1635 16361694 1695 1697 1704 1707 3726 1647 1948 and 1949 and 1956
M K Nambiyar Shyam Nath Kacker J B Dadachanji section N Andley and Rameshwar Nath for the appellants in C As
380 385 387 389 391 399 and 401 of 1958 SNKacker and J B Dadachanji for the appellant in C A No 38658
Naunit Lal for the appellants in C As
429  431 43458
K B Asthana  G N Dikshit for the respondents
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 article 2541 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 article 2542 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 section 6 of the General Clauses Act saved the same 3 that the U P Act did not offend the provisions of article 31 of the Constitution as it stood before the Constitution 4th Amendment Act 1955 for
the U P Act and in particular section 115 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 article 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 articles 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 doc trine of eclipse is applicable only to pre Constitution laws or can apply also to any post Constitution law which falls under article 132 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 vs 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 vs The State of Madhya Pradesh 2 also applies to a post Constitution 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 articles 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    2 1955 2 SCR 589
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  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 section 3 of the U P Act the Government issued a notification dated May 17 1955 whereunder it was directed that the aforesaid routes along with others should be exclucively 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 section 4 of the U P Act formulating the scheme for the aforesaid routes among others
The appellants received notices under section 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 section 8 of the U P Act was pub lished 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 thereunder
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 61956 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 2541 of the Constitution  with the result that at the present time there is no valid law whereunder 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 section 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 article 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 article 2542 of the Constitution rather than on article 2541
He contended that by reason of the Amending Act the U P Act was repealed in toto and because of section 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 article 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 consti tutional 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 paramountcy 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 article 132 and the restrictions imposed by article 245 unlike the mere implied prohibition implicit in the division of power under article 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 1Subject 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 article 13 ie 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 article 13
Article 131 deals with lawsin 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 article 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 article 132 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 still born 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
vs Burah 1 observed at page 193 as under 1 1878 LR 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 vs Attorney General for Canada 1 crisply stated the legal position at page 583 as follows    if the text is explicit the text is con clusive 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 vs 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 2  23 goes further and makes the legislative power subject to the prohibition under article 132
Apparent wide power is therefore reduced to the extent of the prohibition
If articles 245 and 132 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 toto 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 vs United States 1 and for the latter proposition the decision in John M Wilkerson vs 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   2   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 in toxicating 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 be fore 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   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 vs Egg and Egg Pulp Marketing Board 1
Under section 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 which is 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  27 accepted or departed from
The earliest case is Keshavan Madhava Menon vs 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 article 131 on the laws made before the Constitution
The Court by a majority held that article 131 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 voidness 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 131 only has the effect of 1  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 131 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 vs 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 132 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 may be stated thus The learned judges did not finally decide the effect of article 132 of the Constitution on post Constitution laws for the simple reason that the impugned law was a pre Constitution one
article 131 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 article 131 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 30 this decision contains the seed of the doctrine of eclipse developed by my Lord the Chief Justice in Bhikaji Narain Dhakras vs 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 toto 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 article 13 on the said laws
In Behram Khurshed Pesikaka s Case2 this Court considered the legal effect of the declaration made  in the case of The State of Bombay vs F N Balsara 3 that clause b of section 13 of the Bombay Prohibition Act Bom
XXV of 1949 is void under article 131 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 section 13b 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 article 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 132 of our Constitution
They do not directly cover a situation which falls within 1  2 31951 SC R 682
31 article 131  
The question is what is the effect of article 131 on a pre existing valid statute which in respect of a severable part thereof violates fundamental rights
Under article 131 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 voidness 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 article 132 of the Constitution ie 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 article 131 of the Constitution only placed a check on a competent legislature and therefore the word  void  in that article meant  relatively void  ie 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 article 131 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 Con stitutional 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 article 131 thus at page 651  The majority however held that the word void in article 131 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  33 retrospective effect
The majority however held that after the coming into force of the Constitution the effect of article 131 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 article 132 at page 653 thus  The authority thus conferred by Articles 245 and 246 to make laws subjectwise in the different Legislatures is qualified by the declaration made in 5 34 article 132
That power can only be exercised subject to the prohibition contained in article 132
On the construction of article 132 there was no divergence of opinion between the majority and the minority in Keshava Madhava Menon vs The State of Bombay supra
It was only on the construction of article 131 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 article 131
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 article 131 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 article 132 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 Sag hir Ahmad vs The State
of U P 1
There the UPRoad 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  35 right to carry on his transport service
But after the Act article 191 was amended by the Constitution First AmendmentAct 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 191 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 132 of the Constitution
 This is a direct authority on the point without a dis senting 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 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 article 131 of the Constitution 1  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 article 131 of the Constitution and it is no authority on the construction and scope of article 132 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 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 the statute book   
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 18th June 1951 the impugned Act could not stand in the way of the exercise of the fundamental right of a citizen under Article 191g
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 still born 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 Case1 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 article 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 article 13 2 of the Constitution and further that a logical extension of the principle laid down would take in also a case falling under article 132
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  2  3  4  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 article 131 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 article 131 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 article
311 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 article 131 of the Constitution
In Ram Chandra Palai vs 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 2  39 Binjraj vs Union of India 1 Bhagwati J quoted with approval the extract from Keshavan Madhava Menon s Case 2 wherein it was held that article 131 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 articles 131 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 vs 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 vs 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  2  3   899
4   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 ie 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 cribes 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 orsupervening 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 article 2541 of the Constitution with the result that at the present time there is no valid law whereunder 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 article 2542 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 toto 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 article 2541 and 2542
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 as sent 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 2541 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 article 254 would apply to the situation
The first question is whether the provisions of the Union law ie 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 vs 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 vs The State of Bombay 2 this Court laid down a similar test
At page 807 it is stated  The principle embodied in section 1072 and Article 2542 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  2 1955 1 SCR 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 section 3  Where the State Government is of the opinion that it is necessary in the interests of the general public and for subserving 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 he 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 section 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 section 4
Clause 2 of section 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 transferhis permit will be cancelled subject to his right to get compensation under the Act
Under section 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 section 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 section 6 and may either confirm modify or alter the scheme
The Scheme so confirmed or modified or altered under section 7 shall be published in the Official Gazette
Any scheme published under section 8 may at any time be cancelled or modified or altered by the State Government
Section 10 gives the consequences of the publication under section 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 ing 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 of 1939 the procedure prescribed is different
Under section 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 section 3 of the Road Transport Corporation Act 1950 iii the Delhi Transport Authority established under section 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 section 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 section 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 unamended 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 
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 section 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 article 2541  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 article 2541 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 thereunder
Therefore under article 2541 the law under the U P Act subsists to support the schemes framed thereunder 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 article 131 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 article 131 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 131 so far as it is relevant to the present in quiry is pari materia with the provisions of article 2541 of the Constitution
While under article 131 all the pre Constitution laws to the extent of their inconsistency with the provisions of Part III are void under 1  7 50 article 2541 the State Law to the extent of its repugnancy to the law made byParliament 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  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 pro secutions 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 
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 of the Constitution
 The said observation directly applies to a situation created by Art2541
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 2541of the Constitution
The alternative argument advanced by Mr Naunit Lal may now be considered
It is not disputed that under the proviso to article 2542 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 section 6 of the of 1897 are directly attracted
The relevant part of section 6 of the 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 thereunder
 The express words used in clause bcertainly 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 section 6 with those of section 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 section 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 section 24 does not apply
In that situation we have to look to the plain words of section 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 section 68B to achieve the same result namely that the said section indicates a different intention within the meaning of section 6 of the 
Section 68B reads  The provisions of this Chapter and rules and orders made thereunder 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 thereunder
Assuming without deciding that the word instrument  in section 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 section 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 section 6 of the 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 vs Subodh Gopal Bose 1 Dwarkadas Shrinivas of Bombay vs The Sholapur Spinning  Weaving Co Ltd 2 and Saghir Ahmad s Case 3
Those cases have held that cls
1 and 2 of article 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 article 312 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  2  3  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 spowers 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 312 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 article 312 of the Constitution
The next question is whether in fact the provisions of article 312 of the Constitution before the Constitution Fourth Amendment Act 1955 were complied with
Under article 312 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 vs 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 com pensation 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 UP 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  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  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 com pensation under section 11 but the transference of the permit shall be deemed to be in lieu of compensation and complete discharge therefor 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  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 speci fied 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
4The 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  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 sub section 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 sub section 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 Y 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 deter mined 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 ie 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 con ditions 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 section 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 section 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 article 312
But in our view section 115 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 section 111 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 section 115 in our view are certainly susceptible of such
an inter pretation 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 s111
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 section 111
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 section 115 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 115 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 article 311 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 section 3 of the U P Act infringes their fundamental rights under article 312 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 subserving 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 section 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


Summary:
The respondent company terminated the appellant s services on the ground that since he had willingly absented from duty continuously for more than 5 days from December 3 1980 without leave or prior information of intimation or previous permission of the management he had been deemed to have left the service of the company on his own and lost the lien and the appointment with effect from December 3 1980
It relied on clause 132 iv of the Certified Standing Order in support of its action
The appellant s plea that despite his reporting to duty on December 3 1980 and every day continuously thereafter he was prevented entry at the gate and was not allowed to sign the attendance register and that he was not permitted to join duty without assigning any reasons was not accepted
The Labour Court upheld the termination order as legal and valid
It held that the appellant had failed to prove his case that the action of the respondent was in accordance with the Standing Orders and it was not a termination nor retrenchment under the and that the appellant in terms of Standing Orders lost his lien on his appointment and was not entitled to reinstatement
Allowing the appeal of the employee this Court HELD11
The action of the management in terminating the appellant s service is violative of the principles of natural justice
Under clause 13 2 iv of Certified Standing Orders on completion of eight calendar days  absence from duty an employee shall be deemed to have abandoned the services and lost his lien on his appointment
Thereafter the management is empowered to strike off the name from the Muster Rolls
But it is not correct to say that expiry of eight days  absence from duty brings about automatic loss of lien on the post and nothing more need be done by the management to pass an order terminating the service and per force termination is automatic
The prin ciples of natural justice must be read into the Standing Order No 13 2 iv
Otherwise it would become arbitrary unjust and unfair violating Article 14
Keshwanand Bharti vs Union of India and State Bank of India vs Workmen of State Bank of India and Anr   referred to 12
In the instant caseadmittedlythe management did not conduct any domestic enquiry nor gave the appellant any opportunity to put forth his case
932 The Labour Court did not record any findings on the appellant s plea that despite his reporting to duty on December 31980 and on all subsequent days and readiness to join duty he was prevented from reporting to duty nor he was permitted to sign the attendance register but held that the management had power under clause 13 of the Certified Standing Orders to terminate the service of the appellant
Under the circumstances the award of the Labour Court is set aside
The respondent should reinstate the appellant forthwith with 50 per cent of the back wages
Certified Standing Orders have statutory force which do not expressly exclude the application of the principles of natural justice
Conversely the made exceptions for the application of principles of natural justice by necessary implication from specific provisions in the Act like Sections 25F 25FF 25FFF etc
The need for temporary hands to cope with sudden and temporary spurt of work demands appointment temporarily to a service of such temporary workmen to meet such exigencies and as soon as the work or service is completed the need to dispense with the services may arise
In that situation on compliance of the provisions of Section 25F resort could be had to retrench the employees in conformity therewith
Particular statute or statutory rules or orders having statutory flavour may also exclude the application of the principles of natural justice expressly or by necessary implication
In other respects the principles of natural justice would apply unless the employer should justify the exclusion on given special and exceptional exigencies
Col JN Sinha vs Union of India  Anr 1971 1 SCR 791 relied on
Application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority to act arbitrarily affecting the rights of the concerned person
No decision must be taken which will affect the right of any person without first being informed of the case and be given himher an opportunity of putting forward hisher case
An order involving civil consequences must he made consistently with the rules of natural justice
It is not so much to act judicially but to act fairly namely the procedure adopted must he just fair and reasonable in the particular circumstances of the case
The procedure prescribed for depriving a person of livelihood must meet the challenge of Article 14 of the Constitution and such law would be liable to be tested on the anvil of Article 14
The procedure prescribed by a 933 statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of the Article
The manner of exercise of the power and its impact on the rights of the person affected would be in conformity with the principles of natural justice
Article 14 has a pervasive processual potency and versatile quality equalitarian it its soul and allergic to discriminatory dictates
Equality is the antithesis of arbitrariness
Therefore the principles of natural justice are part of Article 14 and the procedure prescribed by law must be right just fair and reasonable and not arbitrary fanciful or oppressive
Mohinder Singh Gill  Anr
vs The Chief Election Commissioner  Ors  State of Orissa vs Dr Miss Binapani Dei  Ors
   State of West Bengal vs Anwar Ali Sarkar  and Maneka Gandhi vs Union of India 1978 2 SCR 621 relied on
Blak s law Dictionary 4th Edn
p 1487 referred to
Article 21 of the Constitution clubs life with liberty dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence
When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence
The order of termination of the service of an employeeworkman visits with civil consequences of jeopardising not only hisher livelihood but also career and livelihood of dependents
Therefore before taking any action putting an end to the tenure of an employeeworkman fair play requires that a reasonable opportunity to put forth his case is given and domestic enquiry conducted complying with the principles of natural justice
Delhi Transport Corpn
vs D TC Mazdoor Congress and Ors 1991 Suppl
1 SCC 600 relied on
The aim of the rule of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice
These rules operate in the area not covered by law validly made or expressly excluded
There can be no distinction between a quasi judicial function and an administrative function for the purpose of principles of natural justice
The aim of both administrative inquiry as well as the quasi judicial enquiry is to 934 arrive at a just decision and if a rule of natural justice is calculated to secure justice or to put it negatively to prevent miscarriage of justice it must logically be applicable both to quasi judicial enquiry and administrative enquiry and not only to quasi judicial enquiry
A K Kriapak and Ors
vs Union of India  Ors  relied on
An authoritative law laid after considering all the relevant provisions and the previous precedents is no longer open to be recanvassed on new grounds or reasons that may be put forth in its support unless the Court deemed it appropriate to refer to a larger bench in the larger public interest to advance the cause of justice
Ambika Prasad Mishra vs State of U P  Ors 10 and Keshwanand Bharti vs Union of India  relied on
The Constitution Bench in fact went into the self same question visa vis the right of the employer to fall back upon the relevant provision of the Certified Standing Orders to terminate the service of the workmanemployee
Therefore it is not correct to say that since the present appeal was deleted from the Constitution Bench to be dealt with separately the finding of the Constitution Bench deprived the respondent of putting forth the plea based on clause 13 of the Certified Standing Order to support the action in question and the respondent is entitled to canvass afresh the correctness of the view of the Constitution Bench
The definition of retrenchment  in Section 2oo of the is a comprehensive one intended to cover any action of the management to put an end to the employment of an employee for any reason whatsoever
Punjab Land Development and Reclamation Corpn
Ltd Chandigarh vs Presiding Officer Labour Court Chandigarh and Ors  State Bank of India vs Sri N Sundara Mani   Delhi Cloth  General Mills Ltd vs Shambhu Nath Mukherjee  Ors 1978 1 SCR 591 Hindustan Steel Ltd vs The Presiding Officer Labour Court  Robert D  Souza vs Executive Engineer Southern Railway and Anr  and HD Singh vs Reserve Bank of India  Ors 1985 4 SCC201 referred to 935