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TMI Blog1959 (1) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... the Motor Vehicles (Amendment) Act, 1956 (100 of 1956), hereinafter referred to as the Central Act, become wholly void under Art. 254(1) of the Constitution but continued to be a valid and subsisting law supporting the scheme already framed under the U. P. Act; (2) that, even if the Central Act be construed as amounting, under Art. 254(2), to a repeal of the U. P. Act, such repeal did not destroy or efface the scheme already framed under the U. P. Act, for the provisions of s. 6 of the General Clauses Act saved the same; (3) that the U. P. Act did not offend the provisions of Art. 31 of the Constitution, as it stood before the Constitution (4th Amendment) Act, 1955, for. the U. P. Act and in particular s. 11(5) thereof provided for the payment of adequate compensation. These findings are quite sufficient to dispose of the points urged by Mr. Nambiyar and Mr. Naunit Lal in support of the claims and contentions of their respective clients. In view of the aforesaid finding that the U. P. Act did not infringe the fundamental rights guaranteed by Art. 31, it is wholly unnecessary to discuss the following questions, namely, (a) whether the provisions of 'Part III of the Constitution ens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of these aspects of the matter do not call for a considered opinion and we reserve our right to deal with the same if and when it becomes actually necessary to do so. SUBBA RAO, J.-These twenty-five appeals are by certificate under Arts. 132 and 133 of the Constitution granted by the High Court of Judicature at Allahabad and raise the question of the validity of the scheme of nationalization of State Transport Service formulated by the State Government and the consequential orders made by it. The said appeals arise out Writ Petitions filed by he appellants in the Allahabad High Court challenging the validity of the U. P. Transport Services (Development) Act of 1955, being U. P. Act No. IX of 1955 (hereinafter referred to as the U. P. Act), and the notifications issued thereunder. All the appeals were consolidated by order of the High Court. The appellants have been carrying on business as stage carriage operators for a considerable number of years on different routes in Uttar Pradesh under valid, permits issued under the Motor Vehicles Act, 1939, along with buses owned by Government. The U. P. Legislature, after obtaining the assent of the President on April 23, 1955, passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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, being repugnant and inconsist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 68B of the Amending Act, the operation of the provisions of the General Clauses Act was excluded. In addition, he contended that in Appeal No. 429 of 1958, the scheme, in so far as it affected the appellant's route was bad inasmuch as no notice was given to him before the scheme was approved. We shall proceed to consider the argument advanced by Mr. Nambiar in the order adopted by him; but before doing so, it would be convenient to dispose of the point raised by the learned Advocate General, for it goes to the root of the matter, and if it is decided in his favour, -other questions do not fall for consideration. The question raised by the learned Advocate General may be posed thus: whether the amendment of the Constitution removing a constitutional limitation on a legislature to make a particular law has the effect of validating the Act made by it when its power was subject to that limitation. The present case illustrates the problem presented by the said question. The U. P. Legislature passed the U. P. Act on April 24, 1955, whereunder the State Government was authorized to frame a scheme of nationalization of motor transport. After following the procedure prescribed therein, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion laid by Art. 13(2) and the restrictions imposed by Art. 245, unlike the mere implied prohibition implicit in the division of power under Art. 246; and (ii) where the provisions of an enactment passed by a legislature after January 26, 1950, in whole or in part-subject to the doctrine of severability-are in conflict with the provisions of Part III, the statute, in whole or in part, is void ab initio. This question was subjected to judicial scrutiny by this Court, but before we consider the relevant authorities, it would be convenient to test its validity on first principles. The relevant Articles of the Constitution read as follows: Article 245: "(1)Subject to the provision of this Constitution, Parliament may make laws for the whole or any part of the territory Of India, and the Legislature of a State may make laws for the whole or any part of the State." Article 246: " (1) Notwithstanding anything in clauses (2) and (3) Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the" Union List "). (2) Notwithstanding anything in clause (3), Parliament and, subject to clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 can be made contravening the provisions of Part III, and therefore the law, to that extent, though made, is a nullity from its inception. If this clear distinction is borne in mind, much of the cloud raised is dispelled. When cl. (2) of Art. 13 says in clear and unambiguous terms that no State shall make any law which takes away or abridges t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve, alike in what it directs and what it forbids." The same idea is lucidly expressed by Mukherjea, J., as he then was, in K. C. Gajapati Narayan Deo v. The State of Orissa [1954] S.C.R. 1.. 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 negativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sted by the constitutional power of a legislature at the time of its enactment by that legislature, and, if thus tested, it is beyond the legislative power, it is not rendered valid, without re-enactment, if later, by constitutional amendment, the necessary legislative power is granted. I An after- acquired power cannot, ex proprio vigore, validate a statute void 'When enacted'. " However, it has been held that where an act is within the general legislative power of the enacting body, but is rendered unconstitutional by reason of some adventitious circumstance, as, for example, when a State legislature is prevented from regulating a matter by reason of the fact that the Federal Congress has already legislated upon that matter, or by reason of its silence is to be construed as indicating that there should be no regulation, the act does not need to be re-enacted in order to be enforced, if this cause of its unconstitutionality is removed. " For the former proposition, the decision in Newberry v. United States (1921) 256 U.S. 232; 65 L. Ed. 913 and for the latter proposition the decision in John M. Wilkerson v. Charles A. Rahrer (1891) 140 U.S. 545; 35 L. Ed. 572 are cited. In Newber ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r those circumstances, the Supreme Court of the United States held : " It was not necessary, after the passage of the Act of Congress of August 8, 1890, to re-enact the Law of Kansas of 1899, forbidding the sale of intoxicating liquors in that State, in order to make such State Law operative on the sale of imported liquors." The reason for the decision is found at page 578: (1) (1891) 140 U.S. 545; 35 L. Ed. 572. 4 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 mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey 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 13(1) only has the effect of 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 Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislative authority and is thus a nullity. Both these declarations of unconstitutionality go to the root of the power itself and there is no real distinction between them. They represent but two aspects of want of legislative power. The legislative power of Parliament and the State Legislatures as conferred by articles 245 and 246 of the Constitution stands curtailed by the fundamental rights chapter of Constitution. A mere reference to the provisions of article 13(2) and articles 245 and 246 is sufficient to indicate that there is no competency in Parliament or a State Legislature to make a law which comes into clash with Part 111 of the Constitution after the coming into force of the Constitution. " The effect of the decision may- be stated thus: The learned judges did not finally decide the effect of Art. 13(2) of the Constitution on post-Constitution laws for the simple reason that the impugned law was a pre-Constitution one. Art. 13(1) was held to be prospective in operation and therefore did not affect the preexisting laws in respect of things done prior to-the Constitution. As regards the post- Constitution period, Art. 13(1) nullified or rendered all inconsistent existi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uation which falls within article 13(1)............... The- question is what is the effect of article 13(1) on a pre-existing valid statute, which in respect of a severable part thereof violates fundamental rights. Under article 13(1) such part is, " void " from the date of the commencement of the Constitution, while the other part continues to be valid. Two views of the result brought about by this 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 passa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted. 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 [1951] S.C. R. 228 explained the majority view therein on the meaning of the word " void " in Art. 13(1) thus, at page 651:- " The majority however held that the word "void" in article 13(1), so far as existing laws Were concerned, could not be held to obliterate them from the statute book, and could not make such laws void altogether, because in its opinion article 13 had not been given any retrospective effect. The majority however held that after the coming into force of the Constitution the effect of article 13(1) on such repugnant laws was that it nullified them, and made them ineffectual and nugatory and devoid of any legal force or binding effect. It was further pointed out in one of the judgments representing the majority view, that the American rule that if a statute is repugnant to the Constitution the statute is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scope of Keshava Madhava Menon's Case on the meaning of the word " void " in Art. 13(1). This judgment is therefore an authority on two points and contains a weighty observation on the third : (i) when the law-making power of a State is restricted by written fundamental law, then any law opposed to the fundamental law is in excess of the legislative authority and is thus a nullity; (ii) even in the case of a statute to which Art. 13(1) applies, though the law is on the statute book and be a good law, when a question arises for determination of rights and obligations incurred prior to January 26, 1950, the part declared void should be nationally taken to be obliterated from the section for all intents and purposes ; and (iii) on the construction of Art. 13(2), the law made in contravention of that clause is a nullity from its inception. The next case is a direct one on the point and that is Sag- hir Ahmad v. The State. of U. P. [1955] 1 S.C.R. 707. There, the U.P.Road Transport Act (11 of 1951) was passed enabling the State to run stage carriage service on a route or routes to the exclusion of others. Under that Act, the State Government made a declaration extending the Act to a pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 13(1) of the Constitution, the Act became void. On behalf of the State, it was argued that the Constitution (First Amendment) Act, 1951, and the Constitution (Fourth Amendment) Act, 1955, had the effect of removing the inconsistency and the Amendment Act III of 1948 became operative again. This Court unanimously accepted the contention of the State. This decision is one given on a construction of Art. 13(1) of the Constitution and it is no authority on the construction and scope of Art. 13(2) of the Constitution. The reason for the decision is found in the following passages in the judgment, at page 598: " ..................... on and after the commencement of the Constitution the existing law, as a result of its becoming inconsistent with the provisions of article 19(1)(g) read with clause (6) as it then stood, could not be permitted to stand in the way of the exercise of that fundamental right. Article 13(1) by reason of its language cannot be read as having obliterated the entire operation of the inconsistent law or having wiped it out altogether from the statute book ............... In short, article 13(1) had the effect of nullifying or rendering the existing law which had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .R. 707 directly apply. To the facts in Bhikaji Narain's Case, [1955] 2 S.C.R. 589 the principle laid down in Keshavan Madhava Menon's Case is attracted. But it is said that the observations of the learned Judges are wide enough to cover the case falling under Art. 13 (2) of the Constitution and further that a logical extension of the principle laid down would take in also a case falling under Art. 13(2). The first contention is based upon the following passage:- But apart from this distinction between pre-Constitution and post-Constitution laws, on which however we need not rest our decision, it must be held that these American authorities could have no application to our Constitution. All laws existing or future 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irrespective of the fact that it was made in infringement of the fundamental rights. The observations of Mukherjea, J., as he then was, in Chiranjit Lal Chowdhuri v. The Union of India [1950] S.C.R. 869, 899 are relied on and they are: " Article 32, as its provisions show, is not directly concerned with the determination of constitutional validity of particular legislative enactments. What it aims at is the enforcing of fundamental rights guaranteed by the Constitution, no matter whether the necessity for such enforcement arises out of an action of the executive or of the legislature....................... The rights that could be enforced under article 32 must ordinarily be the rights of the petitioner himself who complains of infraction of such rights and approaches the court for relief." He also relies upon the, decision of Das, J., as he then was, in The, State of Madras v. Srimathi ChamPakam Dorairajan [1951] S.C.R. 525, 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, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned Act is freed from all blemish or infirmity. Applying the aforesaid principles to the present case, we hold that the validity of the Act could not be tested on the basis of the Constitution (Fourth Amendment) Act, 1955, but only on the terms of the relevant Articles as they existed prior to the Amendment. We shall now proceed to consider the first contention of Mr. Nambiar. He contends that the Motor Vehicles (Amendment) Act (100 of 1956) passed by Parliament was wholly repugnant to the provisions of the U. P. Act and therefore the law became void under the provisions of Art. 254(1) of the Constitution, with the result that at the present time there is no valid law where under the State can prohibit the appellants exercising their fundamental right under the Constitution, namely, carrying on the business of motor transport. Mr. Naunit Lal bases his case on the proviso to Art. 254(2) of the Constitution rather than on cl. (1) thereof. He contends that by reason of the Amending Act, the U. P. Act was repealed in 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 Advocat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the Uttar Pradesh Legislative Assembly, after obtaining the assent of the President on April 23, 1955, passed the U. P. Act. Parliament subsequently passed the Motor Vehicles (Amendment) Act (100 of 1956). Therefore, both the clauses of Art. 254 would apply to the situation. The first question is whether the provisions of the Union law, i.e., the Motor Vehicles (Amendment) Act (100 of 1956), are repugnant to the provisions of the U. P. Act and if so to what extent. Before we proceed to examine the provisions of the two Acts, it may be convenient to notice the law pertaining to the rule of repugnancy. Nicholas in his Australian Constitution, 2nd Edition, page 303, refers to three tests of inconsistency or repugnancy :- "(1) There may be inconsistency in the actual terms of the competing statutes; (2) Though there may be no direct conflict, a State law may be inoperative because the Commonwealth law, or the award of the Commonwealth Court is intended to be a complete exhaustive code; and (3) Even in the absence of intention, a conflict may arise when both State and Commonwealth seek to exercise their powers over the same subject matter." This Court in Ch. Tika Ramji v. The Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eof over which and the date on which -the State Transport Service will commence to operate, the roads in regard to which private persons may be allowed to operate upon, the routes that will be 'served by the State Government in conjunction with railways , the curtailment of the routes covered by the existing -permits or transfer of the permits to other route or routes. Section 5 enjoins the Transport Commissioner to give notice to the permit-holder requiring him to lodge a statement in writing whether he agrees to the transfer of the permit and in cl. (2) thereof, it is prescribed that in case he accepts the transfer, he is nit entitled to any compensation, but if he does not agree to the transfer,his permit will be cancelled subject to his right to get compensation under the Act. Under s. 6 any person whose interests are affected may within 30 days from the publication of the scheme, file objections on it before the Transport 'Commissioner who shall forward them to the Board constituted under s. 7, consisting of the Commissioner of a Division, Secretary to Government in the Transport Department and the Transport Commissioner. The Board shall consider the objections, if any, forwar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 68-A of that Act, 'State Transport Undertaking' is defined to mean any undertaking providing road transport service, where such undertaking is carried on by,-(i) the Central Government or a State Government; (ii) any Road Transport Corporation established under s. 3 of the Road Transport Corporation Act, 1950; (iii) the Delhi Transport Authority established under s. 3 of the Delhi Road Transport Authority Act, 1950; and (iv) any municipality or any corporation or company owned or controlled by the State Government. Under s. 68C, the State Transport Undertaking initiates a scheme if it is of opinion that for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service, it is necessary in the public interest that road transport service in general, or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State Transport Undertaking, whether to the exclusion complete or partial, of other persons or otherwise. Section 68D says that any person affected by the Scheme may file objections to the said Scheme before the State Government; the State Government may, after consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Amending Act should co-exist in respect of schemes to be framed after the Amending Act, is accepted. Further the authority to initiate the scheme, the manner of doing it, the authority to hear the objections, the principles regarding payment of compensation under the two Acts differ in import ant details from one another. While in the U. P. Act the scheme is initiated by the State Government, in the Amendment Act, it is proposed by the State Transport Undertaking. The fact that a particular undertaking may be carried on by the State Government also cannot be a reason to equate the undertaking with the State Government; for under s. 68A the undertaking may be carried on not only by the State Government but by five other different institutions. The undertaking is made a statutory authority under the Amending Act with a right to initiate the scheme and to be heard by the State Government in regard to objections filed by the persons affected by the scheme. While in the U. P. Act a Board hears the objections, under the Amending Act the State Government decides the disputes. The provisions of the scheme, the principles of compensation and the manner of its payment also differ in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valid and would continue to be in force to sustain a prosecution launched for an act done be fore the Constitution. In the words of Das, J., as he then was: " Such laws exist for all past transactions and for enforcing all rights and liabilities accrued before the date of the Constitution." (p. 234). " So far as the past acts are concerned the law exists, notwithstanding that it does not exist with respect to the future exercise of fundamental rights.", (pp. 235-236). Article 13(1), so far as it is relevant to the present inquiry, is pari materia with the provisions of Art. 254(1) of the Constitution. While -under Art. 13(1) all the pre- Constitution laws, to the extent of their inconsistency with the provisions of Part III, are void, under 7 Art. 254(1) the State Law to the extent of its repugnancy to the law made by,Parliament is void. If the pre-Constitution law exists for the post-Constitution period for all the past transactions, by the same parity of reasoning, the State law subsists after the making of the law by Parliament, for past transactions. In this view, both the laws can co-exist to operate during different periods. The same decision also affords a solution to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would it have the effect of effacing the scheme already made ? If there was a repeal, the provisions of s. 6 of the General Clauses Act of 1897 are directly attracted. The relevant part of s. 6 of the General Clauses Act reads: " Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not- (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder." The express words used in clause (b)certainly take in the scheme framed under the -repealed Act. It was a thing duly done under the repealed Act. But it is said that a comparison of the provisions of s. 6 with those of s. 24 would indicate that anything duly done excludes the scheme. Section 24 deals with the continuation of orders, schemes, rules, forms or bye-laws. made or issued under the repealed Act. But that section applies only to the repeal of a Central Act but not a State Act. But the exclusion of the scheme is sought to be supporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , there was no valid law to sustain it, need not detain us; for, we have held that the State law subsists even after the Amending Act to sustain the things done under the former Act. This leads us to the contention of the learned Advocate General that even if the Constitution (Fourth Amendment) Act, 1955, could not be relied on to sustain the validity of the U. P. Act, there was no deprivation of property of the appellants within the meaning of the decisions of this Court in The State of West Bengal v. Subodh Gopal Bose [1954] S.C.R. 587.; Dwarkadas Shrinivas of Bombay v. The Sholapur Spinning & Weaving Co. Ltd. [1954] S.C.R. 674 and Saghir Ahmad's Case [1955] 1 S.C.R. 707. Those cases have held that cls. (1) and (2) of Art. 31 relate to the same subject matter and that, though there is no actual transfer of property to the State, if by the Act of the State, an individual has been substantially dispossessed or where his right to use and enjoy his property has been seriously impaired or the value of the property has been materially reduced, it would be acquisition or taking possession within the meaning of el. (2) of the said Article. After a faint attempt to raise this question, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in fact the provisions of Art. 31(2) of the Constitution, before the Constitution (Fourth Amendment) Act, 1955, were complied with. Under Art. 31(2) no property shall be taken possession of or acquired save for a public purpose and save by authority of law which provides for compensation for the property so acquired or requisitioned and either fixes the amount of the compensation or specifies the principles on which, and the manner in which, the compensation is to be determined and given. In The State of West Bengal v. Mrs. Bela Banerjee [1954] S.C.R. 558, 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 princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 Motor Vehicles Act, 1939, is or is deemed to have been cancelled or the route or routes covered by it are curtailed or are deemed to have been curtailed, the permit- holder shall, except in cases where transfer of the permit has been agreed to under sub-section (2) of section 5; be entitled to receive and be paid such compensation by the State Government for and in respect of the premature cancellation of the permit or, as the case may be, for curtailment of the route or routes covered by the permit as may be determined in accordance with the principles specified in Schedule I. (2) The compensation payable under this section shall be due as from the date of order of cancellation of the permit or curtailment of the route covered by the permit. (3) There shall be paid by the State Government on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 offered is not acceptable to the permit-holder, the Transport Commissioner may, within such time and in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the said appellants accepted the alternative routes. If they or some of them choose to accept any alternative routes, they are at liberty to do so, in which event they will not be entitled to any compensation. Lastly, the learned Counsel for the appellants contends that el. (2) of s. 3 of the U. P. Act infringes their fundamental rights under Art. 31(2) inasmuch as it prevents them from questioning the validity of the scheme on the ground that it is not for public purpose. Section 3 reads: (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- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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