Case: Bhikaji Narain Dhakras And Others Vs. The State Of Madhya Pradesh And Another

2. The facts are short and simple. Each of the petitioners has been carrying on business as stage carriage operator for a considerab1e number of years under permits granted under S. 58, Motor Vehicles Act, 1939 (Central Act IV of 1939) as amended by the C. P. and Berar Motor Vehicles (Amendment) Act, 1947 (Act III of 1948).Prior to the amendment S. 58, Motor Vehicles Act 1939 was in the following termsA permit other than a temporary permit issued under section 62 shall be effective without renewal for such period, not less than three years and not more than five years as the Regional Transport Authority may in its discretion specify in the permit.Provided that in the case of a permit issued or renewed within two years of the commencement of this Act, the permit shall be effective without ranewal for such period of less than three years as the Provincial Government may rescribe.(2) A permit may be renewed on an application made and disposed of as if it were an application for a permit:Provided that, other conditions being equal, an application for renewal shall be given preference over new applications for permits". It will be noticed that under the section as it originally stood the permit granted thereunder was for a period of not less than 3 years and not more than 5 years and a permitholder applying for renewal of the permit had, other things being equal, preference over new app1icants for permit over the same route and would ordinarily get such renewal.Very far-reaching amendments were introduced by the C. P. Berar Motor Vehicles (Amendment) Act, 1947 into the Motor Vehicles Act 1939 in its application to Central provinces and Berar By S. 3 of the amending Act, item (ii) of sub-section ( i) of S. 43 of the Central Act was replaced by the followingfix maximum, minimum or specified fares or freights for stage carriages and public carriers to be applicable throughout the province or within any area or on any route within the province, or(iii) notwithstanding anything contained in section 58 or section 60 cancel any permit granted under the Act in respect of a transport vehicle or class of such permits either generally or in any area specified in the notification:Provided that no such notification shall be issued before the expiry of a period of three months from the date of a notification declaring its intention to do so :Provided further that when any such permit has been cancelled, the permit-holder shall be entitled to such compensation as may be provided in the rules; or(iv) declare that it will engage in the business of road transport service either generally or in any area specified in the notification" .The following sub-section (3) was added after sub-section (2) of S. 58 of the Central Act by S. 8 of the amending Act,Notwithstanding anything contained in sub-section (1), the Provincial Government may order a Regional Transport Authority or the Provincial Transport Authority to limit the period for which any permit or class of permits is issued to any period less than the minimum specified in the Act".Section 9 of the amending Act added after S. 58 a new section reading as followsNotwithstanding anything hereinbefore contained the Provincial Government may by order direct any Regional Transport Authority or the Provincial Transport Authority to grant a stage carriage permit to the Provincial Government or any undertaking in which the Provincial Government is financially interested or a permit-holder whose permit has been cancelled under section 43 or any local authority specified in theresult of these amendments was that power was given to the Government (i) to fix fares or freights throughout the Province or for any area or for any route, (ii) to cancel any permit after the expiry of three months from the date of notification declaring its intention to do so and on payment of such compensation as might be provided by the Rules, (iii) to declare its intention to engage in the business of road transport generally or in any area specified in the notification, (iv) to limit the period of the license to a period less than the minimum specified in the Act and (v) to direct the specified Transport Authority to grant a permit inter alia, to the Government or any undertaking in which Government was financiallymay be mentioned here that in the State of Madhya Pradesh there are two motor transport companies known as C. P. Transport Services Ltd., and Provincial Transport Co., Ltd., in which, at the date of these writ petitions, the State of Madhya Pradesh and the Union of India held about 85 per cent of the share capital. Indeed, since the filing of these petitions, the entire undertakings of these Companies have been purchased by the State of Madhya Pradesh and the latter are now running the Services on some routes for which permits had been granted to them.

Reasoning:
It is obvious that these extensive powers were given to the Provincial Government to carry out and implement the policy of nationalisation of the road transport business adopted by the Government. At the date of the passing of the amending Act (III of 1948), there was no such thing as fundamental rights of the citizens and it was well within the legislative competency of the Provincial Legislature to enact at law. It has been conceded that the amending Act was, at the date of its passing, a perfectly valid piece of13(1) by reason of its language cannot be read as having obliterated the entire operation of the inconsistent law or having wiped it out altogether from the statute book. Such law existed for all past transactions and for enforcement of rights and liabilities accrued before the date of the Constitution, as was held in Keshavan Madhava Menons case (C).The law continued in force, even after the commencement of the Constitution, with respect to persons who were not citizens and could not claim the fundamental right.In short Art. 13(1) had the effect of nullifying or rendering the existing law which had become inconsistent with Article 19(1)(g) read with cl. (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 26-1-1950 and 18-6-1951 the impugned Act could not stand in the way of the exercise of the fundamental right of a citizen under Art. 19(l)true position is that the impugned law became, as it were, eclipsed, for the time being, by the fundamental right. The effect of the Constitution (First Amendment) Act, 1951 was to remove the shadow and to make the impugned Act free from all blemish or infirmity. If that were not so, then it is not intelligible what "existing law" could have been sought to lie saved from the operation of Art. 19(1)(g) by the amended cl. (6) in so far as it sanctioned the creation of State monopoly, for, ex hypothesi, all existing laws creating such monopoly had already become void at the date of the, commencement of the Constitution in view of cl. (6) as it thenAmerican 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. The American authorities, therefore, cannot fully apply to pre-Constitution laws which were perfectly valid before the Constitution. 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 can have no application to our Constitution. All laws, existing or future, which are inconsistent with the provisions of Part III of our Constitution are, by the express provision of Art. 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 againstis only as against the citizens that they remained in a dormant or moribund condition. In our judgment, after the amendment of cl. (6) of Art. 19 on 18-6-1951, the impugned Act ceased to be unconstitutional and became revivified and enforceable against citizens as well as against non-citizens. It is true that as the amended cl. (6) was not made retrospective the impugned Act could have no operation as against citizens between 26-1-1950 and 18-6-1951 and no rights and obligations could be founded on the provisions of the impugned Act during the said period whereas the amended clause (2) by reason of its being expressly made retrospective had effect even during thatafter the amendment of cl. (6) the impugned Act immediately became fully operative even as against the citizens. The notification declaring the intention of the State to take over the bus routes to the exclusion of all other motor transport operators was published on 4-2-1955 when it was perfectly constitutional for the State to do so. In our judgment the contentions put forward by the respondents as to the effect of the Constitution (First Amendment) Act)1951 are well-founded and the objections urged against them by the petitioners are untenable and must be31-A of the Constitution was also amended. There can be no question that the amended provisions, if they apply, save the impugned law, for it does not provide for the transfer of the ownership or right to possession of any property and cannot, therefore, be deemed to provide for the compulsory acquisition or requisitioning of anyis quite true that the impugned Act became inconsistent with Art. 31 as soon as the Construction came into force on 26-1-1950 as held by this Court in Shagir Ahmads case (A) (supra) and continued to be so inconsistent right up to 27-4-1955 and, therefore, under Art. 13(1) became void "to the extent of such inconsistency". Nevertheless, that inconsistency was removed on and from 27-4-1955 by the Constitution (Fourth Amendment) Act. 1955.The present writ petitions were filed on 27-5-1955, exactly a month after the Constitution (Fourth Amendment) Act, 1955 came into force, and, on a parity of reasoning hereinbefore mentioned, the petitioners cannot be permitted to challenge the constitutionality of the impugned Act on and from 27-4-1955 and this objection also cannotis, therefore not clear at all that the impugned Act was in conflict with S. 299 of Government of India Act;Besides, this objection was not taken or even hinted at in the petitions and cannot, be permitted to be raised at this stage.