Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 20
PETITIONER:
SAGHIR AHMAD
Vs.
RESPONDENT:
THE STATE OF U. P. AND OTHERS.(With Connected Appeal)
DATE OF JUDGMENT:
13/10/1954
BENCH:
MUKHERJEA, B.K.
BENCH:
MUKHERJEA, B.K.
HASAN, GHULAM
MAHAJAN, MEHAR CHAND (CJ)
DAS, SUDHI RANJAN
BOSE, VIVIAN
CITATION:
1954 AIR 728 1955 SCR 707
CITATOR INFO :
RF 1954 SC 743 (2)
R 1955 SC 781 (7,8,10)
E&D 1956 SC 298 (15,16)
R 1958 SC 578 (186)
RF 1958 SC 731 (20,29)
R 1959 SC 308 (6,7)
D 1959 SC 648 (22,23,38)
R 1959 SC 694 (5)
R 1960 SC 430 (15)
R 1960 SC1080 (23)
RF 1961 SC 14 (6)
RF 1961 SC 82 (13)
R 1961 SC 232 (58)
D 1961 SC 365 (15,21)
RF 1962 SC1371 (74)
RF 1962 SC1796 (31)
E 1963 SC 90 (16)
R 1963 SC1019 (13,16,17,22)
D 1963 SC1047 (25)
R 1964 SC 925 (35,67)
D 1967 SC 295 (72)
RF 1967 SC 856 (9)
RF 1967 SC1643 (227)
R 1970 SC 129 (10)
R 1970 SC 564 (69)
R 1971 SC1594 (9)
R 1971 SC1737 (48)
R 1972 SC 425 (11,17,20)
D 1972 SC2205 (26)
MV 1973 SC 87 (30,53,67)
RF 1973 SC 974 (7,8)
D 1974 SC1940 (4,46)
RF 1978 SC1457 (61)
E 1980 SC 898 (64)
R 1981 SC 873 (12,33)
R 1982 SC 902 (19)
MV 1982 SC1325 (31,32)
R 1983 SC1115 (13,18,20,23,25)
RF 1984 SC 953 (1)
RF 1986 SC 319 (3)
R 1989 SC1988 (31)
RF 1991 SC1094 (10)
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 20
R 1992 SC 443 (10)
ACT:
Constitution of India, Arts. 14, 19(1) (g), 19(6),
31(2), 301--Highway-Its origin and use-Citizen’s rights in
respect of highwas-Vis-a-vis the State-State’s right to
control highway-Limit of such control-Constitution of India
(First Amendment) Act, 1951 -U. P. Road Transport Act, 1951
(U. P. Act II of 1951)-- Whether ultra vires the
Constitution--Subsequent amendment of Constitution if can
validate a prior unconstitutional Act.
708
HEADNOTE:
A highway has its origin, apart from statute, in
dedication either express or implied, by the owner of land
of a right of passage over it to the public and the
acceptance thereof by the public. Dedication is presumed by
long and uninterrupted user of a way by the public. The
presumption in such cases is so strong as to dispense with
all enquiry into the actual ownership of the land or the
intention of the owner about its user.
All public streets and roads vest in the State, but
the State holds them as trustees on behalf of the public.
The members of the public are entitled as beneficiaries to
use them as a matter of right and this right is limited only
by the similar rights possessed by every other citizen to
use the pathways. The State as trustees on behalf of the
public is entitled to impose all such limitations on the
character and extent of the user as may be requisite for
protecting the rights of the public generally; but subject
to such limitations the the right of a citizen to carry on
business in transport vehicles on public pathways cannot be
denied to him on the ground that the State owns the
highways.
G. S. S. Motor Service v. State of Madras ([19521 2
M. L. J. 894) referred to with approval.
Within the limits imposed by State regulations any
member of the public can ply motor vehicles on a public
road. To that extent he can also carry on the business of
transporting passengers with the aid of vehicles. It is to
this carrying on of the trade or business that the guarantee
in Art. 19(1) (g) is attracted and a citizen can
legitimately complain if any legislation takes away or
curtails that right any more than is permissible under
clause (6) of that article.
Article 19(6) as the result of the Constitution (First
Amendment) Act, 1951, enables 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. This provision of Art. 19(6),
which was introduced by the amendment of the Constitution in
1951, was not in existence when the U. P. Road Transport
Act, 1951 (U. P. Act II of 1951), was passed and therefore
the validity of the impugned Act is not to be decided by
applying the provisions of the now clause.
Amendment of the Constitution which came later cannot
be invoked to validate an earlier legislation which must be
regarded as unconstitutional when it was passed, because 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 reenacted.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 20
Although the normal use of the word "restriction" seems
to be in the sense of limitation and not extinction but
(without expressing any final opinion on the matter) if the
word " I restriction" does not include total prohibition
then the impugned Act cannot be justified under Art. 19(6)
of the Constitution and it would
709
be void unless supported by Art. 31. If however the word Is
restriction" in Art. 19(6) be taken in certain circumstances
to include prohibition as well then the prohibition of the
right of all private citizens to carry on the business of
motor transport on public roads within the State of Uttar
Pradesh as laid down by the impugned Act, cannot be
justified as reasonable restrictions imposed in the
interests of the general public.
Whether the restrictions are reasonable or not would
depend to a large extent on the nature of the trade and the
conditions prevalent in it. There is nothing wrong in the
nature of the motor transport trade in the present case
which is perfectly innocuous.
The U. P. Road Transport Act, (II of 1951) which
violates the fundamental rights of the private citizens
guaranteed under Art. 19(1) (g) of the Constitution and is
not protected by clause (6) of Art. 19 as it stood at the
time of enactment must be held to be void under Art. 13(2)
of the Constitution.
The effect of the prohibition of the trade or business
of the citizens by the impugned legislation amounts to
deprivation of their property or interest in a commercial
undertaking within the meaning of Art. 31(2) of the
Constitution and therefore U. P. Road Transport Act, 1951,
offends against the provision of that clause inasmuch as no
provision for compensation has been made in the Act.
The impugned Act is not void on the ground that it
offends against the equal protection rule embodied- in Art.
14 of the Constitution.
The contention whether the impugned Act conflicts with
the guarantee of freedom of inter-State and intra-state
trade, commerce and intercourse provided for by Art. 301 of
the Constitution discussed and the points that could be
raised and the possible views that could be taken indicated
without expressing any final opinion thereupon.
Cooverjee v. The Excise Commissioner, etc. ([1954] S.C.R.
873) distinguished.
West Bengal v. Subodh Go pal Bose and Others ([1954]
S.C.R. 587) and Dwarkadas Shrinivas v. The Sholapur Spinning
and Weaving Co. Ltd. ([1954] S.C.R. 674) followed.
Packard v. Banton (68 L.E. 596; 264 U.S. 140), Frost v.
Railroad Commission (70 L.E. 1101), Stephenson v. Binford
(77 L.E. 288), Motilal v. Uttar Pradesh Government (I.L.R.
1951 All. 257), Municipal Corporation of the City of Toronto
v. Virgo ([1896] A.C. 88), A. K. Gopalan v. The State
([1950] S.C.R. 88), Lokanath Misra v. The State of Orissa
(A.I.R. 1952 Orissa 42), Commonwealth of Australia and
Others v. Bank of New South Wales and Others ([1950] A.C.
235) and P. and 0. Steam Navigation Co. v. The Secretary of
State (1861 5 B.H.C.R. Appendix 1) referred to.
91
710
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 182 and 183
of 1954.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 20
Appeals under article 132(1) of the Constitution of
India from the Judgment and Order, dated the 17th November,
1953, of the High Court of Judicature at Allahabad in Civil
Miscellaneous Writ No. 414 of 1953, connected with Civil
Miscellaneous Writs Nos. 537, 579 to 582, 587 to 595, 597 to
603, 617 to 620, 622, 623, 626 to 629, 633, 634, 638, 639,
651 to 654, 677 all of 1952 and 339 to 342, 351 to 355, 363,
372 to 374, 397, 416 to 464, 504 and 505 of 1953.
G. S. Pathak (V. D. Bhargava and Naunit Lal, with him) for
the appellants.
K. L. Misra, Advocate-General for the State of U.P.,
and Jagdish Swarup (J. K. Srivastva and C. P. Lal, with
them) for the respondents.
1954. October 13. The Judgment of the Court was delivered
by
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 Authorities.
Section 42(3) of the Act exempts transport vehicles, owned
by or on behalf of the Central Government or the Provincial
Government from the necessity of obtaining permits unless
the vehicles were used in connection Path the business of an
Indian State Railway. It appears, that some time after 1947
the Government of U. P. conceived the idea of running their
own buses on the public thoroughfares. They first started
running buses only as competitors with the private operators
but later on they decided to exclude all private bus owners
from the field and establish a complete State monopoly in
respect to the road transport business. They sought to
achieve this object by
711
calling in aid the provisions of the Motor Vehicles Act
itself. Under section 42(3) of the Act as mentioned above,
the Government had not to obtain permits for their own
vehicles and they could run any number of buses as they
liked without the necessity of taking out permits for them.
The Transport Authorities, in furtherance of -this State
policy, began cancelling the permits already issued to
private operators and refusing permits to people who would
otherwise have been entitled to them. Upon this, a number
of private bus owners filed petitions in the Allahabad High
Court under article 226 of the Constitution praying for
appropriate relief, by way of writs, against what was
described as the illegal use of the provisions of the Motor
Vehicles Act -by the Government of U. P. These petitions
were heard by a Full Bench of five Judges and four judgments
were delivered dealing with various questions that were
raised by the parties. A majority of the judges expressed
the opinion that the State, purporting to act under section
42(3) of the Motor Vehicles Act, could not ’discriminate
against other persons in their own favour and that the sub-
section, in so far as it purports to exempt State Transport
buses from the obligation to obtain permits for their use,
conflicts with article 14 of the Constitution. All the
judges concurred in holding that nationalisation of an
industry was not possible by a mere executive order without
appropriate legislation and such legislation would probably
have to be justified under article 19(6) of the
Constitution. As a result of this decision the Transport
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 20
Authorities were directed to deal with the applications for
permits, made by the various private bus owners, 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
712
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 public and for sub-
serving the common good, so to direct, it may declare that
the Road Transport Services in general, or any particular
class of such service on any route or portion thereof, shall
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 this Act. Section 4
provides for publication of a scheme framed in accordance
with the above declaration and objections to such scheme can
be made by interested persons in the manner laid down in
section 5. As soon as the scheme is finalised, certain
consequences follow which are detailed in section 7. So long
as the scheme continues in force, the State Government shall
have the exclusive right to operate Road Transport Services,
or if the scheme so provides, a certain fixed number of
transport vehicles belonging to others can also be run on
those roads. The State Government shall be authorised in
all such cases to direct the dispensation of the State
Transport vehicles from the necessity of taking out permits,
or to cancel, alter or modify any existing permits or to add
any fresh condition to any permit in respect of any
transport vehicle. The remaining portion of the Act
purports to lay down how the provisions of the Act are to be
worked out and implemented. Sections 8 and 9
713
provide respectively for the appointment of a Transport
Commission and Advisory Committees. Under section 10 the
State Government may delegate its powers under the Act to an
officer or authority subordinate to it. Section 12 makes it
an offence for any person to drive a public service vehicle
or allow such vehicle to be used in contravention of the
provisions of section 7. It is not necessary to refer to the
provisions of the remaining sections as they are not
material for our present purpose.
By a notification dated the 25th of March, 1953, the U.
P. Government published a declaration in terms of section 3
of the Act, to the effect, that the State carriage services,
among others, on the Bulandshar Delhi route, shall be run
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 20
and operated exclusively by the State Government. A further
notification issued on the 7th of April following set out
what purported to be a scheme for the operation of the State
carriage services on these routes. Thereupon the two appel-
lants as well as several other private 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)
714
of the Constitution. It was further argued that the Act
violated the guarantee of freedom of inter-State and intra-
state trade embodied in article 301 of the Constitution.
All these writ petitions were heard by a Division Bench
of the High Court consisting of Mukherji and Chaturvedi JJ.
By two separate but concurring judgments dated the 17th of
November, 1953, the learned Judges repelled all the
contentions of the petitioners and dismissed the writ
petitions. It is against this decision that these two
appeals have come up to this Court on the strength of
certificates granted by the High Court and Mr. Gopal Swarup
Pathak appearing in support of the appeals has reiterated
practically all the grounds which were urged on behalf of
his clients in the Court below. We will take up these
points in proper order and it will be convenient first of
all to address ourselves to the two allied questions, viz.,
whether the appellants could claim any fundamental right
under article 19(1)(g) of the Constitution which can be said
to have been violated by the impugned legislation, and
whether the Act has deprived them of any ’property’ which
would attract the operation of article 31 of the
Constitution?
Mr. Pathak argues that a right to carry on any
occupation, trade or business is guaranteed to all citizens
by article 19(1)(g) of the Constitution. The appellants in
the present cases were carrying on the business of plying
buses on hire on a public highway until now and the Act
which prevents them from pursuing that trade or business
conflicts therefore with the fundamental right guaranteed
under article 19(1)(g) of the Constitution. It is said also
that this beneficial interest of the appellants in the
commercial undertaking is ’property’ within the meaning of
article 31(2) of the Constitution and as the Act does not
conform to the requirements of that article, it must be held
to be void.
Mr. Pathak put forward another and a somewhat novel
argument that the right of the appellants to use a public
highway for purposes of trade is in the nature of an
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 20
easement and as such can be reckoned as property
715
in law; consequently there has been a deprivation of
property by the impugned legislation in this sense also.
This contention seems to us to be untenable and it was
rightly abandoned by the learned counsel.
The Advocate-General appearing for the State of ’U. P.
did not and could not dispute that a right to pursue any
trade, business or occupation of one’s choice is guaranteed
by the Constitution. He 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 repassing
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)(g) of the Constitution in
such cases. The argument requires careful consideration.
It is not disputed that the Bulandshahr-Delhi route is
a part of the Grand Trunk Road which is a public highway.
According to English law, which has been applied all along
in India, a highway has its origin, apart from statute, in
dedication, either express or implied, by the owner of land
of a right of passage over it to the public and the
acceptance of that right by the public (1). In the large
majority of cases this dedication is presumed from long and
uninterrupted
(1) Vide Pratt & Mackenzie on Law of Highways, 19th edn. p.
13.
716
user of a way by the public, and the presumption in such
cases is so strong as to dispense with all enquiry into the
actual intention of the owner of the soil and it is not even
material to enquire who the owner was (). The fact that the
members of the public have a right of passing and repassing
over a highway does not mean however that all highways could
be legitimately used as foot passages only and that any
other user is possible only with the permission or
sufferance of the State. It is from the nature of the user
that the extent of the right of passage has to be inferred
and the settled principle is that the right extends to all
forms of traffic which have been usual and accustomed and
also to all which are reasonably similar and incidental
thereto ( 2). The law has thus been stated
in Halsbury’s Laws of England(1):
"Where a highway originates in an inferred dedication,
it is a question of fact what kind of traffic it was so
dedicated for, having regard to the character of the way and
the nature of the user prior to the date at which -they
infer dedication; and a right of passage once acquired will
extend to more modern forms of traffic reasonably similar to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 20
those for which the highway was originally dedicated, so
long as they do not impose a substantially greater burden on
the owner of the soil."
There can be no dispute that the Grand Trunk Road which,
as a public highway, has been in existence since the 15th
Century A. D. has been used for all sorts of vehicular
traffic that were in vogue at different times. Motor
vehicles were certainly not known when the road came into
existence but the use of motor vehicles in modern times as
means of locomotion and transport could not, on the
principle stated above, amount to an unwarrantable 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
(i) Ibid page 28.
(2) lbid page 35.
(3) Vol. i 6, p. 185.
717
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 AdvocateGeneral that the user
of a public road for purposes of trade is an extraordinary
or special use of the highway which can be acquired only
under special sanction from the State.
The learned Advocate-General in support of his
contention has referred us to a few American cases on the
point. In the case of Packard v. Banton(1), Sutherland J.
observed as follows:
" The streets belong to the public and are primarily for
the use of the public in the ordinary way. Their use for
purposes of gain is special and extraordinary and generally
at least may be prohibited or conditioned as the Legislature
deems proper. "
This decision was approved in Frost v. Railroad
Commission(1), and again in Stephenson v. Binford(3), where
Sutherland J. practically reiterated his observations in the
previous case as follows:
" It is a well established law that the highways of the
State are public property; that their primary and preferred
use is for private purposes; and that their use for purposes
of gain is special and extraordinary which generally at
least the Legislature may prohibit or condition as it sees
fit.
(1)68 L.E. 596; 264 U.S 140. (3) 77 L.E. 288, 294
(2) 7o L.E. 1101 1108. (4) I.L.R. 1951 All. 257.
92
718
We do not think that this is the law of India under
our Constitution. The cases referred to above were noticed
by the Allahabad High Court in the Full Bench decision of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 20
Motilal v. Uttar Pradesh Government(1), and two of the
learned Judges constituting the Full Bench expressed their
opinion that this ’doctrine of exceptional user’ might have
been evolved by the American Courts in the same way as they
evolved the ’doctrine of police powers.’ They both held that
this American rule did not embody the English or the Indian
law on the subject.
This identical point was investigated with considerable
thoroughness in a recent decision of the Madras High Court
in C. S. S. Motor Service v. State of Madras(2), and it was
pointed out by Venkatarama Ayyar J. who delivered the
judgment of the Court, that the rule of special or
extraordinary use of highways in America had its roots in
the doctrine of ’franchise’, which is still a recognised
institution in that country. The doctrine of ’franchise’ or
’privilege’ has its origin in English Common Law and was
bound up with the old prerogative of the Crown. This
doctrine continued to live in the American legal world as a
survival of the pre-independence days, 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
(i) I.L.R. 1951 All. 257.
(2) (1952) 2 M.L.J. 894.
719
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 the point, as it stands at present, has been thus
summed up by the learned Judge :
"The true position then is, that all public streets
and roads vest in the State, but that the State holds them
as trustees on behalf of the public. The members of the
public are entitled as beneficiaries to use them as a matter
of right and this right is limited only by the similar
rights possessed by every other citizen to use the pathways.
The State as trustees on behalf of the public is entitled to
impose all such limitations on the character and extent of
the user as may be requisite for protecting the rights of
the public generally ;......... but subject to such
limitations the right of a citizen to carry on business in
transport vehicles on public pathways cannot be denied to
him on the ground that the State owns the highways. "
We are in entire agreement with the statement of law
made in these passages. Within the limits imposed by State
regulations any member of the public can ply motor vehicles
on a public road. To that extent he can also carry on the
business of transporting passengers with the aid of the
vehicles. It is to this carrying on of the trade or
business that the guarantee in article 19(1) (g) is
attracted and a citizen can legitimately complain if any
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 20
legislation takes away or curtails that right any more than
is permissible under clause (6) of that article.
The legislation in the present case has excluded all
private bus owners from the field of transport business.
Prima facie it is an infraction of the provision of article
19(1) (g) of the Constitution and the question for our
consideration therefore is whether this invasion by the
Legislature of the fundamental right can be justified under
the provision of clause (6) of article 19 on the ground that
it imposes reasonable restrictions on the exercise of the
right in the interests of the general public.
720
Article 19(6) of the Constitution, as it stands after
the amendment of 1951, makes a three-fold provision by way
of exception to or limitation upon clause (1) (g) of the
article. In the first place it empowers the State to impose
reasonable restrictions upon the freedom of trade, business,
occupation or profession in the interests of the general
public. In the second place it empowers the State to
prescribe the professional and technical qualifications
necessary for practicing any profession or carrying 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 the other sub-clauses of the article, means and
includes total deprivation as well? If the answer is in the
affirmative, then only the other two questions would arise,
namely, whether these restrictions are reasonable and have
been imposed in the interests of the general public ?
According to the meaning given in the Oxford Dictionary, the
word "restriction" con. notes a ’limitation’ imposed upon a
person or a thing, a ’condition or regulation’ of this
nature, though the use of the word in the sense of
suppression is not
721
altogether unknown. In the case of Municipal Corporation of
the City of Toronto v. Virgo(1), Lord Davey while discussing
a statutory power conferred on a Municipal Council to make
bye-laws for regulating and governing a trade made the
following observation:
" No doubt the regulation and governance of a trade may
involve the imposition of restrictions on its exercise......
where such restrictions are in the opinion of the public
authority necessary to prevent a nuisance or for the
maintenance of order. But their Lordships think that there
is a marked distinction to be drawn between the prohibition
or prevention of a trade and the regulation or governance of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 20
it, and indeed a power to regulate and govern seems to imply
the continued existence of that which is to be regulated or
governed."
This line of reasoning receives support from the
observations made by some of the learned Judges of this
Court in their respective judgments in the case of A. K.
Gopalan v. The State (2). The question for consideration in
that case was the constitutional validity of the Preventive
Detention Act and one of the contentions raised by the
learned counsel for the appellant in attacking the validity
of the legislation was, that it invaded the right of free
movement guaranteed under article 19(1)(d) of the
Constitution ; and as the restrictions imposed by it could
not be regarded as reasonable restrictions within the
meaning of clause (5) of the article, the enactment should
be held to be void. This argument was repelled by the
majority of the Judges inter alia on the ground that a law
which authorises the deprivation of personal liberty did not
fall within the purview of article 19 and its validity was
not to be judge d by the criteria indicated in that article
but depended on its compliance with the requirements of
articles 21 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
(1) [1896] A.C. 88,93.
(2) [1950] S.C.R. 88.
722
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 sub-
clauses 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."
The point for consideration in that case was undoubtedly
different from the one that has arisen in the present case
and the question whether the restrictions enumerated in the
several sub-clauses of article’ 19 could go to the length of
total deprivation of these liberties was neither raised nor
decided in that case. But a distinction was drawn by the
majority of learned Judges between negation or deprivation
of a right and a restriction upon it and although it was
said. that restriction may reach a point where it might
amount to deprivation, yet restrictions would normally pre-
suppose the continued existence-no matter even in a very
thin and attenuated form-of the thing upon which the
restrictions were imposed. Kania C.J. in his judgment (vide
page 106) expressly said:
Therefore Article 19(5) cannot apply to a substantive
law depriving a citizen of personal liberty. I am unable to
accept the contention that the word ’deprivation’ includes
within its scope ’restriction’ when interpreting Article
21."
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 20
Against this view it may be urged that the use of the
words ’deprivation" and "restrictions" as interchangeable
expressions is not altogether unusual in ordinary language
and the nature and extent of restrictions might in some
cases amount to a negation of the right. The Orissa, High
Court in the care of Lokanath
723
Misra v. The State of Orissa (1) accepted this view and made
a distinction between "regulation" and "restriction". In
the opinion of the learned Judges the observations of Lord
Davey in Municipal Corporation of the City of Toronto v.
Virgo (supra) referred to above could be distinguished on
the ground that the expression used in that article was not
’restriction’ but regulation’ and ’governing’. It is said
that the framers of the Constitution were aware of the
distinction between the power to ’regulate’ and the power to
’restrict’ and this would be apparent from a scrutiny of
sub-clause ’a) of clause (2) of article 25 of the
Constitution where the words "regulating" and "restricting"
occur in juxtaposition indicating thereby that they were not
intended to convey the same meaning.
On behalf of the respondents much reliance has also
been placed on a decision of this Court in Cooverjee v. The
Excise COMMISSIONER, etc. (2) where the point for
consideration was the validity of the Excise Regulation I of
1915. It was contended, 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
(1) A.I.R. 1952 Orissa 42,
(2) [1954] S.C. R. 873.
724
of the restriction regard must be had to the nature of the
business and the conditions prevailing in that
trade.......... It can also not be denied that the State has
the power to prohibit trades which are illegal or immoral or
injurious to the health and welfare of the public. Laws
prohibiting trades in noxious or dangerous goods or
trafficking in women cannot be held to be illegal as
enacting a prohibition and not a mere regulation."
It is contended on behalf of the respondents that these
observations clearly indicate that the expression
"reasonable restriction" as used in article 19(6) of the
Constitution might, in certain circumstances, include total
prohibition. It may be mentioned here that the Excise
Regulation is not a prohibitory statute which prohibits
trading in liquor by private citizens altogether. It
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 20
purports to regulate the trade in a particular way, namely,
by putting up the right of trading in liquor in specified
areas to the highest bidder in auction sale. The general
observations occurring in the judgment cited above must
therefore have to be taken with reference to the facts of
that case.’
Be that as it may, although in our opinion the normal
use of the word "restriction" seems, to be in the sense of
"limitation" and not "extinction", we would on this occasion
prefer not to express any final opinion on this matter. If
the word, "restriction" does not include total prohibition
then the law under review cannot be justified under article
19(6). In that case the law would be void unless it can be
supported by article 31. That point will be dealt with
under the other point raised in the appeal. If however the
word "restriction" in article 19(6) of the Constitution be
taken in certain circumstances to include prohibition as
well, the point for consideration then would be, whether the
prohibition of the right of all private citizens to carry on
the business of motor transport on public roads within the
State of Uttar Pradesh as laid down by the Act can be
justified as reasonable restrictions imposed in the
interests of the general public.
As has been held by this Court in the case of Gooverjee v.
The Excise, Commissioner, etc.(1) whether
(I) [1954] S.C.R. 873.
725
the restrictions are reasonable or not would depend to a
large extent on the nature of the trade and the conditions
prevalent in it. There in nothing wrong in the nature of
the trade before us, which is perfectly innocuous. The
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 observations of Lord Porter in the Privy
Council case of Commonwealth of Australia and Others v. Bank
of New South Wales and Others (1) upon which considerable
reliance has been placed by the High Court would indicate
the proper way of approach to this question’ "Their
Lordships do not intend to lay it down", thus observed Lord
Porter, "that in no circumstances could the exclusion of
competition so as to create a monopoly either in a State or
Commonwealth agency or in some other body be justified.
Every case must be judged,on its own facts and in its own
setting of time and circumstance, and it may be that in
regard to some economic activities and at some stage of
social development it might be maintained that prohibition
with a view to State monopoly was the only practical and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 20
reasonable
(1) [1950] A. C. 235, 311.
93
726
manner of regulation". In order to judge whether State
monopoly is reasonable or not, regard therefore must be had
to the facts of each particular case in its own setting of
time and circumstances. It is not enough to say that as an
efficient transport service is conducive to the interests of
the people, a legislation which makes provision for such
service must always be held valid irrespective of the fact
as to what the effect of such legislation would be and
irrespective of the particular conditions and circumstances
under which the legislation was passed. It is not enough
that the restrictions are for the benefit of the public,
they must be reasonable as well and the reasonableness could
be decided only on a conspectus of all the relevant facts
and circumstances.
With regard to the second point also we do not think
that the learned Judges have approached the question from
the proper stand point. There is undoubtedly a presumption
in favour of the constitutionality of a legislation. But
when the enactment on the face of it is found to violate a
fundamental right guaranteed under article 19(1)(g) of the
Constitution, it must be held to be invalid unless those who
support the legislation can bring it within the purview of
the exception laid down in clause (6) of the article. If
the respondents do not place any materials before the Court
to establish that the legislation comes within the permis-
sible limits of clause (6), it is surely not for the appel-
lants to prove negatively that the legislation was not
reasonable and was not conducive to the welfare of the
community. 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
727
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 of permits, which are granted to them by the authorities
under the Motor Vehicles Act, no compensation has been
allowed to them under the statute. It goes without saying
that as a result of the Act they will all be deprived of the
means of supporting themselves and their families and they
will be left with their buses which will be of no further
use to them and which they may not be able to dispose of
easily or at a reasonable price. It may be pointed out in
this connection that in Part IV of the Constitution which
enunciates the directive principles of State policy, article
39(a) expressly lays down that the State shall direct its
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 20
policy towards securing "that the citizens, men and women
equally, have the right to an adequate means of livelihood."
The new clause in article 19(6) has no doubt been introduced
with a view to provide that a State can create a monopoly in
its own favour in respect of any trade or business; but the
amendment does not make the establishment of such monopoly a
reasonable restriction within the meaning of the first
clause of article 19(6). The result of the amendment is
that the State would not have to justify such action as
reasonable at all in a Court of law and no objection could
be taken to it on the ground that it is an infringement of
the right guaranteed under article 19(1)(g) of the
Constitution. It is quite true that if the present statute
was passed after the coming into force of the new clause in
article 19(6) of the Constitution, the question of
reasonableness would not have arisen at all and the
appellants’ case on this point, at any rate, would have been
inarguable. These are however
728
considerations which cannot affect our decision in the
present case. The amendment of the Constitution, which came
later, cannot be invoked to validate an earlier legislation
which must be regarded as unconstitutional when it was
passed: As Professor Cooley has stated in his work on
Constitutional Limitations(1) "a statute void for
u‘constitutionality 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 19(1)(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 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 Con-
stitution 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 routes and
by deciding to run the routes itself the State acquired the
right which was of the petitioners ? To me it appears that
it could not be said that there was by the State any
acquisition of the right which was formerly of the
petitioners, whether such right was
(1) VOl. 1, P. 384 note.
729
property or an interest in a commercial or industrial
undertaking. The vehicles which were being operated by the
private operators have not been acquired by the State nor
has any other tangible property which was used by the
petitioners for their business been acquired. What has been
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 20
done is that the petitioners have been prohibited from
operating their buses on certain routes. This right of the
petitioners has in no way been vested in the State inasmuch
as the State always had an equal right with the petitioners
to run their buses on these routes."
According to the High Court, therefore, mere depriv-
ation of the petitioners’ right to run buses or their
interest in a commercial undertaking is not sufficient to
attract the operation of article 31(2) of the Constitution
as the deprivation has been by the authority of law within
the meaning of clause (1) of that article. Clause (2) could
be attracted only if the State had acquired or taken
possession of this very right or interest of the petitioners
or in other words if the right of the petitioners to run
buses had been acquired by or had become vested in the
Government. The State, it is pointed out, has an undoubted
right to run buses of its own on the public thoroughfares,
and they do not stand on the rights of the petitioners.
This argument, we think, is not tenable having regard to the
majority decision of this Court in the case of State of West
Bengal v. Subodh Gopal Bose and Others (1) and Dwarkadas
Shrinivas v. The Sholapur Spinning and Weaving Co. Ltd. (2).
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’s
powers, 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 co
n. needed 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
(1) [1954] S.C.R. 587.
(2) [1954] S.C.R. 674.
730
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 category from private
citizens; but the contention is that when the State carries
on trade as merchants it occupies the same position as
private traders and its acts in this respect cannot be
regarded as acts of the sovereign. Much reliance has been
placed by the learned counsel in sup-port of this view on
the judgment of Sir Barnes Peacock in P. and O. Steam
Navigation Co. v. The Secretary of State(1). The other
objection taken by the learned counsel is, that the Act
gives an unguided and unfettered discretion to the State to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 20
associate such persons as it likes in the transport business
and thereby allows it to discriminate between one citizen
and another. No rules are laid down to regulate the choice
of the State in such cases.
So far as the first ground is concerned, it is well
settled that mere differentiation does not make a
legislation obnoxious to the equal protection clause. The
Legislature has always the power to make classification and
all that is necessary is that the classification should not
be arbitrary but must bear a reasonable
(1) (1861) 5 B.H.C.R. Appendix 1.
731
relation to the object which the legislation has in view.
There is no doubt that classification is inherent in the
concept of a monopoly; and if the object of legislation is
to create monopoly in favour of the State with regard to a
particular business, obviously the State cannot but be
differentiated from ordinary citizens and placed in a
separate category so far as the running of the business is
concerned and this classification would have a perfectly
rational relation to the object of the statute. No doubt if
the creation of a monopoly in favour of the State is itself
bad on the ground of violating some constitutional
provisions, the statute would be invalid for those reasons
and the question of discrimination would not be material at
all. In our opinion, the argument of Mr. Pathak that the
State ceases to function as a State as soon as it engages
itself in a trade like ordinary trader cannot be accepted as
a sound proposition of law under the Constitution of India
at the present day. In the last century, when the laissez
faire doctrine held the field, the primary function of a
State was considered to be maintenance of law and order and
all other activities were left to private competitors. That
conception is now changed and in place of the ’police State’
of old, we are now having a ’welfare 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
732
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, plainly the provision would
offend against article 14 of the Constitution. The learned
Advocate-General pointed out however that the State is only
to choose the routes or portions of routes on which the
private citizens would be allowed to operate and the number
of persons to whom permits should be given, and that the
granting of permits would necessarily be regulated by the
provisions of Motor Vehicles Act. This does not appear to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 20
us to be an unreasonable construction to be put upon the
relevant portion of section 3 of the Act and it receives
support from what is laid down in section 7(c) of the Act.
On this construction the discretion to be exercised by the
State would be a regulated discretion guided by statutory
rules. We hold therefore that the appellant cannot make any
grievance on this score and that the statute does not offend
against article 14 of the Constitution.
The last point that remains to be considered is, whether
the Act conflicts with the guarantee of freedom of inter-
State and intrastate trade, commerce and intercourse
provided for by article 301 of the Constitution ? Article
301 runs as follows:
" Subject to the other provisions of this Part, trade’
commerce and intercourse throughout the territory of India
shall be free. "
Article 302 authorises the Parliament to impose such
restrictions on the freedom of trade, commerce and
intercourse between one State and another or within any part
of the territory of India as may be required in the public
interests. Under article 304(b) it is competent even for
the Legislature of a State to impose reasonable restrictions
upon the freedom of trade, commerce and intercourse
mentioned above in the interests of the public, but it is
necessary that any bill or amendment for this purpose should
first receive the sanction of the President before it is
moved or introduced in the Legislature of a State. Article
301
733
corresponds to section 92 of the Australian Constitution and
is even wider than the latter inasmuch as the Australian
Constitution provides for the freedom of inter-State trade
only. The High Court has negatived the contention of the
appellants on this point primarily on the ground that
article 301 of the Constitution has no application to the
present case. What is said is, that article 301 provides
safeguards for carrying on trade as a whole as distinguished
from the rights of an individual 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 Commonwealth of
Australia v. The Bank of New South Wales (supra), that the
rights of individuals do come within the purview of the
section. It is true, as Lord Porter observed, that section
92 does not create any new juristic rights but it does give
the citizens of the State or the Commonwealth, as the case
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 20
may be, the right to ignore and, if necessary, to call on
the judicial power to help him to resist legislative- or
executive actions which offend against the section. It
follows from this, as his Lordship pointed out, that
94
734
the application of section 92 does not involve calculations
as to the actual present or possible future effect upon the
total value of inter-State trade, the difficulty in applying
such a criterion being too obvious. If this view is adopted
in regard to article 301 of our Constitution it can
plausibly be argued that the legislation in the present case
is invalid as contravening the terms of the article. The
question of reasonable restrictions could not also arise in
this case, as the bill was not introduced with the previous
sanction of the President as required by the proviso to
section 304(b). It is true that the consent of the
President was taken subsequently but the proviso expressly
insists on the sanction being taken previous to the
introduction of the bill.
It may be argued that freedom of trade does not, as
Lord Porter observed in the Australian Bank case
referred to above, mean unrestricted or unrestrained freedom
and that regulation of trade is quite compatible with its
freedom. As against this it may be pointed out that the
Constitution itself has provided in articles 302 and 304(b)
how reasonable restrictions could be imposed upon freedom of
trade and commerce and it would not be proper to hold that
restrictions can be imposed aliunde these provisions in the
Constitution. The question would also arise as to what
interpretation should be put upon the expression "reasonable
restrictions" and whether or not we would have to apply the
same tests as we have applied in regard to article 19(6) of
the Constitution. One material thing to consider in this
connection would be that although the Constitution was
amended in 1951 by insertion of an additional clause in
article 19(6) by which State monopoly in regard to trade or
business was taken out of the purview of article 19(1) (g)
of the Constitution, yet no such addition was made 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.
735
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 the provisions of the U. P. State Road
Transport Act, 1951, against the appellants or the men
working under them. There will be no order as to costs.
Appeals allowed.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 20