TMI Blog1954 (10) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... eals should be allowed and the judgment of the High Court set aside A writ in the nature of mandamus shall issue against the respondents in these appeals restraining them from enforcing the provisions of the U. P. State Road Transport Act, 1951, against the appellants or the men working under them. - Civil Appeals Nos. 182 and 183 of 1954. - - - Dated:- 13-10-1954 - MUKHERJEA, B.K., HASAN, GHULAM, MAHAJAN, MEHAR CHAND , DAS, SUDHI RANJAN AND BOSE, VIVIAN, JJ. For the Appellant: G. S. Pathak withV. D. Bhargava and Naunit Lal For the Respondent: K. L. Misra, Advocate-General for the State of U.P., and Jagdish Swarup with J. K. Srivastva and C. P. Lal JUDGMENT: MUKHERJEA J.- The appellant in these two analogous appeals, along with many others, have been carrying on the business of plying motor vehicles, as ,stage carriages on hire, on the Bulandshabr-Delhi route from a number of years past. The running of these vehicles has been regulated so long by the Motor Vehicles Act of 1939 which provides, inter alia, for granting of driving licences, the registration of vehicles and exercising control over transport vehicles through permits granted by Regional Transport Aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in accordance with the provisions of the Motor Vehicles Act, without in any way being influenced by the consideration that the State Government wanted to run buses of their own on certain routes. In view of this pronouncement of law, the State Government, which wanted to have the exclusive right to operate Road Transport Services within its territory, sought the assistance of the Legislature and the U. P. Road Transport Act (Act II of 1951) was passed and became law on and from the 10th of February, 1951. It is the constitutional validity of this enactment which is the subject-matter of contest in these present proceedings. The preamble to the Road Transport Act (hereinafter called "The Act") says: "Whereas it is expedient in the interest of the general public and for the promotion of the suitable and efficient road transport to provide -for a State Road Transport Services in Uttar Pradesh, it is enacted as follows." Section 2 gives definitions of certain terms, while section 3, which is the most material section in the Act, embodies virtually its whole purpose. It provides that where the State Government is satisfied that it is necessary, in the interest of general ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate bus owners numbering 106 in all, who plied transport buses on these routes, presented petitions under article 226 of the Constitution before the High Court at Allahabad praying for writs, in the nature of mandamus, directing the U. P. Government and the State Transport Authorities not to interfere with the operation of the stage carriages of the petitioners and to refrain from operating the State Road Transport Service except in accordance with the provisions of the Motor Vehicles Act. The constitutional validity of the Act was challenged on a number of grounds, the principal contentions being: (1) that the Act was discriminatory in its character and contravened the provisions of article 14 of the Constitution; (2) that it conflicted with the fundamental rights of the petitioners guaranteed under article 19(1)(g) of the Constitution; and (3)that it was an invalid piece of legislation as it purported to acquire the interest of the petitioners in a commercial undertaking without making any provision for compensation as is required under article 31(2) of the Constitution. It was further argued that the Act violated the guarantee of freedom of inter-State and intrastate trade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e says however that this does not mean that a citizen can carry on his trade or business anywhere he likes and such right is also guaranteed by the Constitution. He must have a legal right to use a particular place for purposes of his trade or business, before he can resist any encroachment upon it on the strength of the constitutional guarantee. His argument in substance is, that the bus owners, as members of the public, have no legal right to ply buses on hire on any public road. The only right which a member of the public can assert in respect of a highway is the right of passing and re-passing over it. The State in which all public ways vest under the law has the sole right to determine whether it would allow any citizen to carry on a trade or business upon a public highway and if so, to what extent. The citizen has no inherent right in this respect apart from any State sanction. The position, therefore is, that the rights of the appellants, as indeed those of the other bus owners, are created entirely by State legislation and by State legislation they could be deprived of the same. There is no question of any conflict with the fundamental right guaranteed under article 19(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrantable extension of the accustomed user to which the highway is subjected. If there is any danger to the road by reason of such user, or if such user by one interferes with the user by others, it is up to the State to regulate the motor traffic or reduce the number or weigh of vehicles on the road in any way it likes, and to that no objection can possibly be taken. But the right of the public to use motor vehicles on the public road cannot, in any sense, be regarded as a right created by the Motor Vehicles Act. The right exists anterior to any legislation on this subject as an incident of public rights over a highway. The State only controls and regulates it for the purpose of ensuring safety, peace, health and good morals of the public. Once the position is accepted that a member of the public is entitled to ply motor vehicles on the public road as an incident of his right of passage over a highway, the question is really immaterial whether he plies a vehicle for pleasure or pastime or for the purpose of trade and business. The nature of the right in respect to the highway is not in any way affected thereby and we cannot agree with the learned Advocate General that the user o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ays, though in an altered form. The place of the royal grants under the English Common Law was taken by the legislative grants in America and the grant of special rights by legislation to particular individuals or companies is regarded there as a franchise or Privilege differing from the ordinary liberties of a citizen. The carrying on of transport buses by common carriers on the public road in America is a franchise and not a common law right, which could be claimed by all citizens and a distinction is made, as the cases cited above will show, between contract carriers who carry passengers or goods under particular contracts and common carriers whose business is affected with public interest. Over the latter the State claims and exercises a plenary power of control. Ayyar J. has, in our opinion, rightly pointed out that this doctrine of franchise has no place in our Constitution. Under the Indian Constitution the contract carries as well as the common carriers would occupy the same position so far as the guaranteed right under article 19(1) (g) is concerned and both are liable to be controlled by appropriate regulations under clause (6) of that article. The law on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrying on any occupation, trade or business. Thirdly,-and this is the result of the Constitution (First) Amendment Act of 1951-it enables the State to carry on any trade or business either by itself or through a corporation owned or controlled by the State to the exclusion of private citizens wholly or in part. It is not disputed that the third provision which was introduced by the amendment of the Constitution in 1951 was not in existence when the impugned Act was passed and the High Court rightly held that the validity of the Act is not to be decided by applying the provision of the new clause. The learned Judges held however that quite apart from the new provision, the creation of a State monopoly in regard to transport service, as has been done under the Act, could be justified as reasonable restrictions upon the fundamental right enunciated in article 19(1) (g) of the Constitution imposed in the interests of the general public. The question is, whether the view taken by the High Court is right? To answer this question three things will have to be considered. The first is, whether the expression "restriction" as used in article 19(6) and for the matter of that in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 and 22 of the Constitution. The expression Personal liberty" as used in article 21, it was said, was sufficiently comprehensive to include the particular freedoms enumerated in article 19(1) and its deprivation therefore in accordance with the provision of article 21 would result in automatic extinction of the other freedoms also. In this connection reference was made to the several sub-clauses of article 19 and Patanjali Sastri J. expressed his views in the following words: "The use of the word restrictions in the various subclauses seems to imply, in the context, that the rights guaranteed by the Article are still capable of being exercised, and to exclude the idea of incarceration though the words restriction and deprivation are sometimes used as inter- changeable terms, as restriction may reach a point where it may well amount to deprivation. Read as a whole and viewed in its setting among the group of provisions relating to right to freedom , Article 19 seems to my mind to presuppose that the citizen to whom the possession of these fundamental rights is secured retains the substratum of personal freedom on which alone the enjoyment of these rights necessarily rests." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntended, inter alia, on behalf of the appellant in that case that the Excise Regulation and the auction sales made thereunder were ultra vires, as the law purported to grant monopoly of that trade to a few persons and this was inconsistent with article 19(1)(g) of the Constitution. This contention was negatived and this Court held that for the purpose of determining reasonable restrictions within the meaning of article 19(6) of the Constitution on the right given under article 19(1)(g), regard must be had to the nature of the business and the conditions prevailing in a particular trade. The State has certainly the right to prohibit trades which are illegal or immoral or injurious to the health and welfare of the public. The relevant portion of the judgment runs as follows: "Article 19(1)(g) of the Constitution guarantees that all citizens have the right to practise any profession or to carry on any occupation or trade or business, and clause (6) of the article authorises legislation which imposes reasonable restrictions on this right in the interests of the general public. It was not disputed that in order to determine the reasonableness of the restriction regard must be h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned Judges of the High Court have upheld the validity of the legislation substantially on two grounds. In the first place, they have relied on what may be said to be an abstract proposition of law, that prohibition with a view to State monopoly is not per se unreasonable. "In my opinion", thus observes one of the learned Judges, "even this total stoppage of trade on public places and thoroughfares cannot always be said to be an unreasonable restriction". In the second place, it has been said that the transport services are essential to the life of the community and it is conducive to the interests of the general public to have an efficient system of transport on public roads. It is pointed out that the preamble to the Act indicates that the legislation was passed in the interests of the general public who are undoubtedly interested in a suitable and efficient road transport service, and it was not proved by the petitioners that the monopoly, which was contemplated in favour of the State in regard to this particular business, was not conducive to the common welfare. As a proposition of law, the first ground may not admit of any dispute but we think that the observat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unity. In the present case we have absolutely no materials before us to say in which way the establishment of State monopoly in regard to road transport service in the particular areas would be conducive to the general welfare of the public. We do not know the conditions of the bus service at the present moment or the conveniences or inconveniences of the public in regard to the same; nor we are told how the position is likely to improve if the State takes over the road transport service and what additional amenities or advantages the general public would enjoy in that event. We mention these matters only to show that these are relevant facts which might help the Court in coming to a decision as to the reasonableness or otherwise of the prohibition, but unfortunately there are no materials in the record relating to any one of them. One thing, however, in our opinion, has a decided bearing on the question of reasonableness and that is the immediate effect which the legislation is likely to produce. Hundreds of citizens are earning their livelihood by carrying on this business on various routes within the State of Uttar Pradesh. Although they carry on the business only with the aid o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle, as it stood at the time of the enactment, must be held to be void under article 13(2) of the Constitution. We now come to the second point which is in a manner connected with the first and the question is: If the effect of prohibition of the trade or business of the appellants by the impugned legislation amounts to deprivation of their property or interest in a commercial undertaking within the meaning of article 31(2) of the Constitution, does not the legislation offend against the provision of that clause inasmuch as no provision for compensation has been made in the Act ? 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 commercial undertaking. There is no doubt also that the appellants have been deprived of this interest. In the opinion of the High Court, in the circumstances of the present case, there is no scope for operation of article 31(2) of the Constitution and the reason for taking this view is thus given in the judgment of one of the learned Judges: "The question is whether by depriving the private operators of their right to run buses on certain rou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred 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 provision of article 31(2) of the Constitution and as the requirements of that clause have not been complied with, it should be held to be invalid on that ground. The next point that requires consideration is, whether the Act or any of its provisions are discriminatory in their character and conflict with the rule of equal protection embodied in article 14 of the Constitution ? Mr. Pathak has raised a two-fold contention on this point. He has argued in the first place that no discrimination could be made in favour of the State as against private individuals in the matter of carrying on the business of plying buses for hire on public roads. The State as a person, it is conceded, comes under a different class or c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are State. Chapter IV of our Constitution which lays down the Directive Principles of State Policy clearly indicates what the functions of a State should be and many things which could not have been considered as State functions when the case of P. and 0. Steam Navigation Co. v. The Secretary of State (Supra), was decided would certainly come within the legitimate scope of State duties. Vide in this connection Lokanath Misra v. State of Orissa(supra). The other contention of Mr. Pathak in regard to article 14 though somewhat plausible at first sight does not appear to us to be sound. Section 3 of the Act authorises the State Government to declare that the road transport service in general or on particular routes should be run and operated by the State Government exclusively or by the State Government in conjunction with railway or partly by the State Government and partly by others in accordance with the provisions of the Act The whole question is how is the last part of the section to be implemented and carried out? If the State can choose any and every person it likes for the purpose of being associated with the transport service and there are no rules to guide its discretion, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndividual to carry it on. In other words, this article is concerned with the passage of commodities or persons either within or outside the State frontiers but not directly with individuals carrying on the commerce or trade. The right of individuals, it is said, is dealt with under article 19(1) (g) of the Constitution and the two articles have been framed in order to secure two different, objects. The question is not quite free from difficulty and in view of the fact that we have declared the Act to be unconstitutional on the two grounds mentioned above, we do not consider it necessary to record our decision on this point. We would only desire to indicate the contentions that have been or could be raised upon this point and the different views that are possible to be taken in respect to them so that the Legislature might take these matters into consideration if and when they think of legislating on this subject. We desire to point out that in regard to section 92 of the Australian Constitution, which so far as inter. State trade is concerned adopts almost the same language as article 301 of our Constitution, it has been definitely held by the Judicial Committee in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in article 301 or article 304 of the Constitution and article 301, as it stands, guarantees freedom of trade, commerce and intercourse subject only to Part XIII of the Constitution and not the other parts of the Constitution including that dealing with fundamental rights. The Australian Constitution indeed has no provision like article 19(1) (g) of the Indian Constitution and it is certainly an arguable point as to whether the rights of individuals alone are dealt with in article 19(1) (g) of the Constitution leaving the freedom of trade and commerce, meaning by that expression only the free passage of persons and goods within or without a State to be dealt with under article 301 and the following articles. We have thus indicated only the points that could be raised and the possible views that could be taken but as we have said already, we do not desire to express any final opinion on these points as it is unnecessary for purposes of the present case. The result is that in our opinion the appeals should be allowed and the judgment of the High Court set aside A writ in the nature of mandamus shall issue against the respondents in these appeals restraining them from enforcing t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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