1. Messrs, Jagat Nath Wahal, Jeewan Nath Wahal and Mahabir Prasad Srivastava made applications before the State Transport Authority, Lucknow, for grant of stage carriage permits on Meerut-Delhi, an inter-State route. The State Transport Authority dismissed all the three applications mainly on the ground that the Meerut-Delhi was a notified route under the Motor Vehicles Act and as such no stage carriage permit could legally be granted to the said applicants. The order of the State Transport Authority was challenged in appeal by Jagannath Wahal, Jeewan Nath Wahal and Mahabir Prasad Srivastava before the State Transport Appellate Tribunal, U.P (hereinafter referred to as the Appellate Tribunal); By its order dated 27th February, 1973, the Appellate Tribunal allowed the three appeals and set aside the order of the State Transport Authority. It further directed the State Transport Authority to grant stage carriage permits to each of the three appellants. The Appellate Tribunal held that there was no valid nationalisation scheme in existence in respect of Meerut-Delhi route, consequently the route was not notified and therefore the stage carriage permits could legally be granted to the applicants under Chapter IV of the Motor Vehicles Act. The U.P State Road Transport Corporation thereafter filed the present petition before this Court under Article 226 of the Constitution challenging the validity of the order of the Appellate Tribunal.
2. Sri S.N Kackar, the learned Advocate-General appearing for the petitioner contended that the order of the Appellate Tribunal was manifestly erroneous; it had no jurisdiction to issue direction for the grant of any stage carriage permits to the respondents on the Meerut-Delhi route as that route was a notified route and the State Road Transport Corporation had exclusive right in law to ply its vehicles on that route to the complete exclusion of other private persons. Sri S.C Khare, learned counsel for respondents Nos. 5 to 7, strenuously urged that the route in question was not a notified route; therefore the Appellate Tribunal had jurisdiction to issue direction for the grant of stage carriage permits to the respondents. He disputed the petitioner' right to ply its vehicles exclusively on the Meerut-Delhi route. Thus the main controversy in the case is whether the route in question is a notified route and if so whether the U.P Road Transport Corporation has got exclusive right to ply its vehicles on the route and the Appellate Tribunal had no jurisdiction to grant permits to private operators. Before I deal with the submissions made by the learned counsel for the parties, I consider it necessary to refer to the legislative history and the circumstances giving rise to the petitioners' claim that Meerut-Delhi route is a notified route. It appears that sometime before 1950 the Govenrment of Uttar Pradesh conceived the idea of running its own stage carriages on the various routes of the State. In pursuance of that policy it issued executive instructions to the transport authorities constituted under the Motor Vehicles Act, 1939, directing them not to grant permanent permits or to renew them in favour of private operators as the State Government desired to have monopoly for plying its own vehicles namely the U.P Government Roadways. In pursuance of those executive orders permits of some of the existing operators were cancelled while the renewal applications of others were rejected. The U.P Government Roadways vehicles commenced their operation on a number of routes including Meerut-Delhi route. The affected operators filed a number of writ petitions before this Court under Article 226 of the Constitution challenging the operation of the U.P Government Roadways vehicles and the orders of the Transport Authorities creating monopoly in favour of the State through executive orders. The petitions were heard by a Full Bench of five Judges of this Court. The Full Bench in Moti Lal v. State, AIR 1951 All 257 held that it was permissible for the State Government to carry on business of transport even in the absence of any legislation but the State Government could not create monopoly of Road Transport business by executive orders in the absence of appropriate legislation. The Court directed the Transport Authorities to consider the applications for permits made by the private operators in accordance with the provisions of the Motor Vehicles Act without being influenced by the consideration that the State Government wanted to run buses of their own on those routes.
3. The State Government was keen to have monopoly and exclusive right to operate road transport services on the various routes, therefore it sought the assistance of the legislature. Consequently the U.P Road Transport Act (No. II of 1951) was enacted by the State Legislature which received assent of the President. The Act was enforced with effect from 10th February, 1951. The Act conferred power on the State Government to operate its road transport services exclusively in accordance with the provisions of the Act which contemplated framing of schemes in accordance with Sections 4, 5 and 7 of the Act. The provisions contained in the Act ensured monopoly in favour of the State Road Transport Services operated by the State Government to the complete exclusion of the private operators. Section 13 of the Act sought to validate the operation of the State Road Transport Services which had commenced plying on different routes prior to the enforcement of the Act. Section 13(1)(b) of the Act laid down that every route, on which the State Road Transport Services were operating on the appointed day (9th February, 1951) was deemed to be a notified route under Sections 3, 4 and 5 of the said Act provided the State Government within fifteen days of the commencement of the Act issued a notification notifying the scheme in respect of those routes. On the issue of such a notification all the routes included in that notification shall be called a notified route and the consequences contemplated by Sections 6 and 7 will ensue with the result no permit could be granted to any private operator and the State Road Transport Services will exclusively operate on the said route. Section 13(1)(b) thus sought to validate the operation of the State Road Transport Services to create monopoly in favour of the State with retrospective effect. The State Government in exercise of its powers under Section 13(1)(b) of the 1951 Act issued a notification dated 12th February, 1951, published in the U.P Extraordinary Gazette of the same date notifying schemes for a large number of routes over which the State Government had been operating its stage carriages on the date immediately preceding the commencement of the said Act. A copy of the notification has been filed as Annexure I to the petition. A perusal of that notification would show that Meerut-Delhi route was also notified along with other interstatal route, namely Dehradun-Delhi via Ghaziabad.
4. The validity of the U.P Act II of 1951 was challenged before the Supreme Court in Saghir Ahmad v. State of U.P (AIR 1954 SC 728). The Supreme Court struck down the Act as unconstitutional on two grounds; Firstly that the 1951 Act was violative of Article 19(1)(g) of the Constitution and secondly that the 1961 Act was violative of Article 31 of the Constitution inasmuch as it did not contain any provision for payment of compensation to the private operators who were deprived of their business of running their buses on public routes. The State Legisature again intervened. It enacted U.P Road Transport Services Development Act, 1955 (U.P Act No. IX of 1955). The Act was given retrospective effect and it was enforced with effect from 18th June, 1951. Sections 3, 4 and 5 of the 1955 Act made provision for framing of schemes in respect of various routes for the exclusive operation of the State Transport Undertaking and for cancellation of existing permits of the private operators. After the scheme was finalised and published in the Gazette certain consequences ensued as enumerated in Section 10 of the Act. Section 11 of the Act made provision for grant of compensation to the private operators, whose permits may be cancelled in pursuance of the scheme framed under the Act. Sections 19 and 20 made provision for validating all orders made, actions or proceedings taken, directions issued or jurisdiction exercised by any authority under or in accordance with the provisions of the 1951 Act, notwithstanding any judgment or decree or order of any court.
5. There was no provision in the Central Act (Motor Vehicles Act, 1939) for creating monopoly in favour of State Transport Undertaking. Since the subject-matter of legislation with regard to Motor Vehicles was in the concurrent list, item No. 35, List III of Seventh Schedule - the legislatures of several States enacted State laws making provision for the monopoly of State Transport Undertaking in transport business. Subsequently the Parliament realised the necessity of having a uniform legislation for the entire country, it therefore amended the Motor Vehicles Act, 1939, and introduced Chapter; IV-A in the Act making special provision for framing schemes for exclusive operation of State Transport Undertaking - vide the Motor Vehicles (Amendment) Act No. 100 of 1956. The validity of the U.P Act IX of 1955 was challenged before the High Court but that failed and the Act was held valid. In appeal the Supreme Court upheld the judgment of the High Court in Deep Chand v. State of U.P (AIR 1959 SC 648). It was held that the U.P Act IX of 1955 was valid and it did not violate any provision of the Constitution. The Supreme Court further held that the law made by Parliament for framing schemes and notifying the routes as contained in Act No. 100 of 1956 was to prevail after its enforcement and any scheme for the exclusive operation of the State Transport vehicles was required to be framed under the Central Act and not under the State Act. It was, however, made clear that, the schemes already framed under the U.P Act subsisted and the State law continued to be in force to sustain those schemes even after the Parliament enacted the Central Act No. 100 of 1956. The Appellate Tribunal held that the schemes published under the notification dated 12th February, 1951, in respect of the route in question was subsisting and no private individual was entitled to any permit, the Tribunal, however, was of the view that the State Legislature had no jurisdiction to make law conferring power on the State Government to frame a scheme for the exclusive operation of the State Transport Services on an inter-Statal route. According to the Tribunal, since a portion of the Meerut-Delhi route was included within the territorial limits of Delhi State, neither the U.P Legislature nor the State Government of Uttar Pradesh had any authority in law to make any law or scheme in respect of that portion which was within the territory of Delhi. On these reasonings the Tribunal held that since there was no legal sanction behind the scheme, the Meerut-Delhi route was not a notified route, hence permits could be granted to private individuals also and the petitioner had no right to ply exclusively on that route. This was the main ground upon which the Appellate Tribunal interfered with the order of the State Transport Authority and directed grant of permit to the respondents. The learned Advocate General contended that the Tribunal committed an apparent error in coming to that conclusion. According to him there was no lack of legislative competence in the U.P Legislature and the schemes framed under the State law notifying an inter-State route were valid. I find force in this contention.
6. In Khazan Singh v. State of U.P ((1974) 1 SCC 295 : AIR 1974 SC 669) the Supreme Court repelled similar contention that the State Legislature had no authority to make law for carrying on trade and business by the State Government beyond its territorial limits and that the executive power of the State could not exceed its territorial limits for the purpose of carrying on business of road transport service. The Supreme Court held that the State Government in approving a scheme does not legislate in the sense that the State makes laws under Article 245 of the Constitution for the whole or any part of the State. Limitation on the power of the State to make laws for any part or whole of the areas outside the territorial limits cannot be invoked for the purpose of placing restrictions on the power of the State to approve scheme relating to inter-State route. Their Lordships held that Article 298 of the Constitution envisaged carrying on of trade and business by the State without any territorial limitations. The only restriction on the executive power of the State was contained in clause (b) of the proviso to that Article. According to that clause, the executive power of the State was not restricted to a subject with respect to which the State Legislature may make laws in so far as the question of trade and business is concerned. Article 296 read with entry 35 in List III of the Seventh Schedule confers wide power on the State Legislature to enact laws to create commercial or industrial monopoly in favour of the State Transport Undertaking, as was held by the Supreme Court in Narayanappa v. State of Mysore (AIR 1960 SC 1073). The above two Supreme Court cases make it amply clear that under our Constitution there is no prohibition against carrying on trade or business by the State Government or any State agency beyond the territorial limits of the State, nor is there any prohibition against carrying on of such trade or business without enacting law for that purpose.
7. In Khazan Singh' case, (1974) 1 SCC 295 : AIR 1974 SC 669 the Supreme Court was considering validity of a scheme framed under Chapter IV-A of the Motor Vehicles Act, 1939, which is a Central Act enacted by the Parliament. There was no provision similar to the proviso to subsection (3) of Section 68-D of the Motor Vehicles Act, 1939, in the U.P Act II, of 1951 or the U.P Act IX of 1955 requiring approval of a scheme relating to inter-statal route by the Central Government. But that does not make the law laid down by the Supreme Court inapplicable. In the instant case, since 1951 the vehicles of the U.P Government Roadways have been operating on the Meerut-Delhi route with the concurrence and approval of the Delhi State and the two Governments have been acting in concert and treating the route in question as notified route, but if there remained an infirmity on account of the legislative competence in framing a scheme for inter-statal route under the U.P Act, that infirmity has been cured by Parliamentary Legislation namely Central Act 56 of 1969, which was enforced with effect from 1st April, 1971. By that Act Parliament added Section 135 to the Motor Vehicles Act, 1939 and XIIth Schedule to the Act which sought to repeal the provisions of the State Acts which were repugnant to the provisions of the Motor Vehicles Act and were redundant in view of the provisions contained in the Act. As already noted the legislatures of different States had enacted State laws conferring power on the State Government to frame schemes for plying State Road Transport Services exclusively on various routes. After the enactment of Chapter IV-A of the Motor Vehicles Act, 1939, a scheme for the exclusive operation of the State Transport Undertaking could be framed only under the Central Act and not under the State Acts. The Parliament therefore considered it necessary to enact Section 135 and Schedule XII repealing various State Acts. Section 135 repealed all the Acts mentioned in the XIIth Schedule which includes U.P Act IX of 1955. While repealing the State Acts Section 135 further laid down that notwithstanding the repeal of enactments, all notifications, orders or directions issued or any declaration made or any licence, permission or exemption granted or any confiscation or any other thing done or any other action taken under the repealed Act shall so far as they are not inconsistent with the provisions of 1938 Act be deemed to have been done or taken under the corresponding provisions of the Act. Thus the Parliament laid down that even though the State law stands repealed, any notification issued or scheme framed under the State Act shall subsist and the same shall be deemed to have been done or taken under the corresponding provisions of the Central Act. The provisions contained in the U.P Act IX of 1955 for the framing of a scheme are similar to those as contained in Chapter IV-A of the Motor Vehicles Act and the consequences contemplated by Section 10 of the 1955 Act are referable to Section 68-F (2) of the 1939 Act. There are corresponding provisions in the Central Act to sustain the schemes framed under the U.P Act No. IX of 1955. A scheme relating to an inter-statal route framed under the 1955 Act is referable to Section 68-D. Thus the scheme framed under the U.P Act IX of 1955 stands protected by Section 135 of the Act and the notified character of Meerut-Delhi route continued to remain unchanged even after the repeal of U.P Act No. IX of 1955. Moreover, even if the State of U.P had no authority to frame a scheme in respect of inter-statal route, or even if there was any defect on the ground of lack of territorial jurisdiction, the same stands removed and the scheme stands validated and saved by the Parliamentary legislation, namely the Act No. 56 of 1969. In this view of the matter the Appellate Tribunal committed error in holding that the State Legislature had no jurisdiction to enact law for creating monopoly on an inter-statal route and that the State Government was not legally competent to carry on transport business outside its territorial limits.
8. Sri S.C Khare, learned counsel for the respondents urged that Section 19 or 20 of the 1955 Act could not validate schemes notified under Section 13(1)(b) of the 1951 Act. He urged that since the 1951 Act was void, any scheme framed thereunder was nonest and ceased to be in existence on 18-6-1951, the date on which the 1955 Act was enforced, hence there was nothing in existence which could be validated by the 1955 Act. It was further urged that once a post-Constitution law was void under Article 13(2) of the Constitution, the State Legislature was not competent to revive the dead schemes framed under the 1951 Act. Moreover as the 1951 Act had been declared void as it violated Article 19(1)(g) of the Constitution: that constitutional infirmity could not be removed by the State Legislature for the period prior to 18-6-1951 i.e the date of enforcement of the First Constitution Amendment. The Legislature was conscious of its constitutional limitations and that was why the 1955 Act was enforced retrospectively with effect from 18-6-1951 only, i.e the date from which Article 19(1)(g) stood amended. The legislature did not and it could not validate any action taken, or notification issued under the 1951 Act prior to 18-6-1951.
9. It is true that the 1951 Act was declared void by the Supreme Court in Saghir Ahmad' case, AIR 1954 SC 728 on the ground that the Act violated fundamental rights of operators as it placed unreasonable restrictions on their right to carry on business. That finding was given by the Supreme Court as the State Government had failed to place any material before the Supreme Court to show in which manner the establishment of State monopoly in regard to road transport service was conducive to the general welfare of the public. Prior to the amendment of Article 19 by the First Constitution Amendment Act, 1951, whenever a challenge was made by a citizen to a post-Constitution law creating State monopoly in a business, the State was required to place material before the Court to justify the reasonableness of the restrictions but after the coming into force of the new clause in Article 19(6) of the Constitution, the question of reasonableness could not be raised and the State was not required to justify reasonableness of the restrictions. The new clause in Article 19(6) of the Constitution was added by the First Constitution Amendment which was enforced with effect from 18-6-1951. In Saghir Ahmad' case, an attempt was made on behalf of the State Government to save the 1951 Act on the basis of the amendment of Article 19 but the Supreme Court repelled that contention in the following words:—
“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 vide Vol. I, page 384 note, ‘a statute void for unconstitutionality is dead and cannot be vitalised by a subsequent amendment of the Constitution removing the constitutional objection but must be re-enacted’. We think that this is sound law…………”
10. With the above observation the Supreme Court refused to uphold Constitutional validity of 1951 Act in the light of the amended Article 19 of the Constitution. It is well accepted principle that the validity of a statute is to be tested by the Constitutional power of a legislature at the time of its enactment by that legislature and if it is found beyond the legislative power it cannot be rendered valid without re-enactment if by later Constitutional Amendment the necessary legislative power is granted. This principle was reiterated by the Supreme Court in Deep Chand' case (AIR 1959 SC 648) while considering the validity of the U.P Act No. IX of 1955.
11. Sri Khare placed reliance on the above quoted observations of Mukerji, J. in Saghir Ahmad' case, AIR 1954 SC 728 in support of his contention that a statute enacted in violation of fundamental right enshrined in Part III of the Constitution was void under Article 13(2) of the Constitution with the result the 1951 Act stood effaced from the Statute Book and any orders or notifications issued or any scheme framed under that Act ceased to be in existence. It was urged that the notification issued in pursuance of 1951 Act ceased to be in existence and as such the 1955 Act could not revitalise the dead provisions of the Act or scheme or orders issued thereunder. No doubt, the contention of Sri Khare is supported by the observations of Mukerji, J. in Saghir Ahmad' case. Similar view was taken relating to post-Constitution laws in Deep Chand' case (AIR 1959 SC 648) and Mahendra Lal v. State of U.P (AIR 1963 SC 1019). The Supreme Court indicated distinction between a pre-Constitution law and a post-Constitution law. It was held that if a pre-Constitution law violated any of the fundamental rights enshrined in Part III of the Constitution, the same would be unenforceable and none of the rights of a citizen could be affected by the provisions contained in such a law, but if the offending provisions were removed or if the Constitutional limitations were removed by an amendment of the Constitution removing the ground which brought about the voidness, the law would become enforceable. The Supreme Court laid down the doctrine of eclipse and made it applicable to pre-Constitution laws, but in the case of a post-Constitution law the Supreme Court expressed the opinion that if a post-Constitution law violated fundamental right of a citizen the law would be void and it could not be revitalised by any subsequent amendment of the Constitution removing the Constitutional limitations although it was permissible to the legislature to re-enact the law after removing the Constitutional defects. Thus according to the aforesaid cases, while a pre-Constitution law remained only unenforceable if its provisions offended Part III of the Constitution but it could be revitalised and enforced after the Constitutional limitations were removed but it was not permissible in the case of a post-Constitution law.
12. The Supreme Court, however, struck a different note in several cases. In Bhikaji Narain Dhakras v. State of M.P (AIR 1955 SC 781), while considering the validity of the pre-Constitution Act the Supreme Court observed: “All laws, existing or future, which are inconsistent with the provisions of Part III of the Constitution are by the 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 purpose of pre-Constitution rights and liabilities and they remained operative even after the Constitution as against non-citizens.” In Sundararamier and Co. v. State of Andhra Pradesh (AIR 1958 SC 468) the main point for determination was the validity of the Sales Tax Validation Act, 1956, a Madras Act. Venkatarama Aiyar, J. reviewed the authorities and thereafter concluded:—
“Thus a legislation on a topic not within the competence of the Legislature and a legislation within its competence but violative of Constitutional limitations have both the same reckoning in a Court of Law; they are both of them unenforceable. But does it follow from this that both the laws are of the same quality and character and stand on the same footing for all purposes………… If a law is on a field not within the domain of the Legislature, it is absolutely null and void, and a subsequent cession of that field to the Legislature will not have the effect of breathing life into what was of stillborn piece of legislation and a fresh legislation on the subject would be requisite. But if the law is in respect of a matter assigned to the Legislature but its provisions disregard Constitutional prohibitions, though the law would be unenforceable by reason of those prohibitions, when once they are removed, the law will become effective without re-enactment.”
13. The above observations show that a law enacted by a legislature without having legislative competence would be void ab initio and the same cannot be revived or revitalised even if the legislative competence is conferred on that legislature subsequently. But in a case where the legislature has legislative competence to enact a law, and some of its provisions violate any of the fundamental rights contained in Part III of the Constitution, the same would be rendered void under Article 13(2) of the Constitution and would remain unenforceable. The law so enacted is not wiped off the Statute Book nor it stands repealed. Further if the offending provisions of the Statute which violate fundamental rights are removed the law would become effective and enforceable even without re-enactment. Such a law, whether pre-Constitution or post-Constitution, is not wholly dead if it violates fundamental rights; it is merely eclipsed by fundamental right and remains as it were in a moribund condition as long as the shadow of fundamental rights falls upon it. When that shadow is removed the law begins to operate proprio vigore from the date of such removal unless it is retrospective. A law declared void by a court is not effaced from the Statute Book; it is revived and revitalised if Constitutional limitations are removed by Constitutional amendment or by re-enactment by legislature.
14. The Supreme Court upheld the validity of validating Acts removing the Constitutional defects of a post-Constitution law which were void under, Article 13(2) of the Constitution as the Acts contained provisions which were violative of Article 14 of the Constitution. In State of Mysore v. D. Achiah Chhetty ((1969) 1 SCC 248 : AIR 1969 SC 477), the City of Bangalore Improvement (Amendment) Act, 13 of 1960 was declared unconstitutional as it practised discrimination. Subsequently a validating Act was enacted removing the vice of discrimination with retrospective effect and validating the acquisitions made earlier under the Act notwithstanding any judgment or decree of a court. The validity of the Validating Act was challenged but the Supreme Court repelled the contention and upheld the validity in the following words:—
“The supremacy of the legislature in India within the constitutional limits of their jurisdiction is as complete as that of the British Parliament. If two procedures exist and one is followed and the other is discarded there may in a given case be found discrimination. But the legislature has still the competence to put out of action retrospectively one of the procedures, leaving one procedure only available, namely, the one followed and thus to make disappear the discrimination. In this way a Validating Act gets over discrimination. Where, however, the legislative competence is not available, the discrimination must remain for ever since that discrimination can only be removed by a legislature having power to create a single procedure out of two and not by a legislature which has not that power.”
15. Similarly, in Hari Singh v. Military Estate Officer, Delhi ((1972) 2 SCC 239 : AIR 1972 SC 2205), the Public Premises (Eviction of Unauthorised Occupants) Act, 1958, a post-Constitution law was void under Article 13(2) of the Constitution. The legislature amended the 1958 Act and added Section 10-E which removed the discrimination with retrospective effect. The contention that the 1958 Act being a post-Constitution law could not be revitalised as the 1958 Act was ab initio void and the same could not be validated subsequently without re-enactment, was repelled placing reliance upon the law laid down in State of Mysore v. D. Achiah Chetty, (1969) 1 SCC 248 : AIR 1969 SC 477 (supra). The Supreme Court upheld the validity of Section 10-E. In Hari Singh' case the validity of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (No. 41 of 1971), a Punjab Act, was also under challenge. The Supreme Court in Northern India Caterers (P) Ltd. v. State of Punjab (AIR 1967 SC 1581) had declared the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959, void as Section 5 of that Act practised discrimination and was thus violative of Article 14 of the Constitution. Subsequently, the Legislature enacted the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. Section 20 of that Act sought to validate the proceedings taken under the 1958 Act with retrospective effect notwithstanding any judgment or decree of the Court. The contention that since the 1958 Act was violative of Article 14 of the Constitution it was never in existence and therefore the earlier action taken under the 1958 Act could not be validated by the 1971 Act was repelled. In support reliance was placed on earlier cases of the Supreme Court, namely. Saghir Ahmad v. State of U.P (AIR 1954 SC 728); Bhikaji Narain Dhakras v. State of M.P (AIR 1955 SC 781); M.P.V Sundararamier and Co. v. State of Andhra Pradesh (AIR 1958 SC 468); Deep Chand v. State of U.P (AIR 1959 SC 648) and Mohan Lal Jaini v. State of U.P (AIR 1963 SC 1019). The Supreme Court repelled the contention and upheld the validity of 1971 Act on the ground that the Parliament had re-enacted the law retrospectively removing the discrimination.
16. It is thus clear that the Supreme Court in the above two cases, namely Hari Singh' case, (1972) 2 SCC 239 : AIR 1972 SC 2205 and State of Mysore' case, (1969) 1 SCC 248 : AIR 1969 SC 477 did not accept the contention that a post-Constitution law if void under Article 13(2) of the Constitution was non-est and could not be re-vitalised by the legislature even if the constitutional defects are removed subsequently with retrospective effect.
17. In L. Jagannath v. Authorised Officer, Land Reforms, Madurai, ((1971) 2 SCC 893 : AIR 1972 SC 425) the validity of Madras Land Reforms (Fixation of Ceiling on Land) Act (No. 58 of 1961) was challenged. The validity of that Act had been challenged earlier also in Krishnaswami Naidu v. State of Madras (AIR 1964 SC 1515). The Supreme Court had struck down the Act on the ground that its provisions violated Articles 14, 19 and 31(2) of the Constitution. Thereafter, by the 17th Amendment of the Constitution the said Madras Act was included in the IXth Schedule. The validity of the Act was again challenged before the Supreme Court on the ground that the Ceiling Act of 1961 having been declared void under Article 13(2) of the Constitution, the legislation was void ab initio and it was effaced from the Statute Book, it could not therefore be enforced or made operative merely by constitutional amendment without re-enacting the provisions of the Act. The Supreme Court after considering a number of authorities repelled the contention in the following words:
“These Acts even if void or in-operative at the time when they were enacted by reason of infringement of Article 13(2) of the Constitution, assumed full force and vigour from the respective dates of their enactment after their inclusion in the Ninth Schedule read with Article 31-B of the Constitution.”
18. In view of the above discussion the contention of Sri Khare that as the 1951 Act was void and that it stood obliterated from the statute book and the schemes framed thereunder or the notifications issued in pursuance of that Act could not be re-vitalised by the 1955 Act cannot be accepted.
19. There is yet another reason to reject the respondents' contention. As already noted all the authorities relied on on behalf of the respondents laid down that it is always permissible to a legislature to re-enact law to remove Constitutional defects. In the instant case the State Legislature re-enacted the law for creating monopoly in transport business in favour of State Transport Undertaking by enacting the 1955 Act which was put in operation retrospectively with effect from 18th June, 1951, i.e from the date the First Constitution Amendment Act came into force. Even in Saghir Ahmad' case (AIR 1954 SC 728), Mukerji, J. had expressly observed that the 1951 Act could not be held valid by virtue of the First Constitution Amendment unless the same was re-enacted. The State Legislature, therefore, re-enacted the law and Sections 19 and 20 of the 1955 Act sought to validate all orders and notifications issued under the 1951 Act and by a legal fiction those orders and notifications were deemed to have been issued under the corresponding provisions of the 1955 Act. The legislature not only declared the schemes valid but it declared that the orders or notifications issued under the 1951 Act shall be deemed to have been issued under the 1955 Act. As already noted the State Legislature had legislative competence on the topic of motor transport. It, therefore, had jurisdiction to remove the lacuna and constitutional infirmities and to validate the law with retrospective effect.
20. Sri S.C Khare then urged that since the 1955 Act came into force on 18-6-1951, it could not operate between 26-1-1950 and 18-6-1951 to save or validate the notification dated 12-2-1951 under Section 13(1)(b) of the 1951 Act. This contention cannot be accepted for various reasons. Firstly, Sections 19 and 20 operate to validate orders and notifications issued under the 1951 Act prior to 18-6-1951. Whatever schemes, notifications or orders were in existence on 18-6-1951 stood validated by Sections 19 and 20 of the Act notwithstanding any judgment or decree of court. Admittedly the notification dated 12-2-1951 was in existence on 18-6-1951 as the same had not been struck down or quashed or declared illegal by any competent court by that date. The notification, therefore, stood validated under Ss. 19 and 20. The 1955 Act picked up the notification issued under 1951 Act and re-enacted law to validate the same with retrospective effect. If the legislature had not re-enacted and if it had merely declared that the notifications issued under the 1951 Act were valid, then different considerations could arise. But in the instant case, the legislature took care to re-enact law and to validate the earlier notifications with retrospective effect. It is always permissible to a legislature to re-enact law and to remove the defect and to validate the actions taken under the earlier Act. (See AIR 1962 SC 1753 : (1969) 1 SCC 248 : AIR 1969 SC 477 and (1972) 2 SCC 239 : AIR 1972 SC 2205).
21. Secondly, even if the 1951 Act was void, it was not effaced from the statute book. As already discussed the result was that the Act could not be enforced during 26-1-1950 to 18-6-1951 and for the same reason the notification issued under Section 13(1)(b) could not also be legally enforced. But once the constitutional limitation was removed and the Act was re-enacted by 1955 Act it was open to the legislature to validate the notification and to enforce the same with effect from 18-6-1951. Even if the notification could not affect the right of a citizen prior to 18-6-1951, it legally became enforceable on 18-6-1951 and the route in question became a notified route conferring exclusive right on the State Transport Undertaking to ply its vehicles on that route. The respondents could not, therefore, claim any right to obtain permit under Chapter IV of the Motor Vehicles Act on Meerut-Delhi route merely on the ground that the notification dated 12-2-1951 could not be enforced prior to 18-6-1951. Even if the respondents' contention is accepted, the result would be that the monopoly of the State Transport Undertaking on the Meerut-Delhi route was not in accordance with law during the period 12th February, 1951 to 18th June, 1951. Consequently the operation of the vehicles of the State Transport Undertaking was rendered illegal. Section 19 of the 1955 Act validated operation of these vehicles with effect from 18th June, 1951. None of the three respondents had made any application for the grant of permit during the said period on Meerut-Delhi route, and none of their rights were affected, as such they can have no grievance. If the rights of a citizen were affected adversely by the illegal operation of State Transport Undertaking vehicles during the period between 12th February, 1951 to 18th June, 1951, he could be entitled to relief but the respondents are not entitled to any relief or to grant of permit after 18th June, 1971. The schemes framed under the 1951 Act and notified under the notification dated 12th February, 1951 were revitalised and were enforced with effect from 18th June, 1951. But even assuming that the notification dated 12-2-1951 was dead and could not be revived on 18-6-1951 the route in question could not be available for grant of permit to private operators. Section 19(2)(a) of the 1955 Act laid down that if on the appointed date viz., 4-2-1955, vehicles of State Transport Undertaking had been operating on a route in that event the operation of the State Transport Undertaking shall be deemed to be under a scheme framed under the provisions of 1955 Act. Admittedly the State Road Transport Service was operating on the Meerut-Delhi route on the appointed date. Therefore by virtue of the deeming provisions contained in Section 19(2)(a) of the 1955 Act, the Meerut-Delhi route was deemed to be a notified route under a scheme prepared and published in accordance with Sections 4 to 8 of the Act. Thus for this reason also the respondents have no right to get any permit for plying stage carriage on the Meerut-Delhi route.
22. Sri Khare then urged that since the State Legislature was not competent to create monopoly in favour of the State Transport Undertaking in road transport business prior to 1951, therefore Sections 19 and 20 of the 1955 Act could not validate the earlier notifications or schemes issued or framed under the 1951 Act. Reliance was placed on Sri Prithvi Cotton Mills v. Broach Borough Municipality ((1969) 2 SCC 283 : AIR 1970 SC 192) and Municipal Corpn. v. New Shrock Spg. and Wvg. Co. Ltd., ((1970) 2 SCC 280 : AIR 1970 SC 1292). I have carefully considered these cases. In my opinion none of these cases lend any support to the respondents contention. In Prithvi Cotton Mills' case while considering the validity of the Validation Act the Supreme Court observed:—
“If the legislature has the power over the subject-matter and competence to make a valid law it can at any time make such a valid law and make it retrospective so as to bind even the past transactions. The validity of a Validating Law, therefore, depends upon whether the legislature possesses the competence which it claims over the subject-matter and whether in making the validation it removes the defect which the court had found in the existing law and makes adequate provisions in the Validating Law for a valid imposition of the tax.”
23. In view of the above observations, once it is conceded that the legislature has power over the subject-matter and is competent to make law it can any time enact a law validating the earlier actions provided it removes the defect which the court may have found in the existing law. In the instant case it is conceded that the topic of legislation relating to motor vehicles falls under entry 35 of the Concurrent List of the Seventh Schedule to the Constitution and as such the State Legislature was competent to make a law creating monopoly in favour of the State Transport Undertaking. Entry 35 of the Concurrent List read with Article 298 of the Constitution leaves no manner of doubt that the State Legislature was competent to enact the 1955 Act which created monopoly in Transport business. (See AIR 1960 SC 1073). As already discussed the two defects found by the Supreme Court in Saghir Ahmad' case, AIR 1954 SC 728 in 1951 Act were removed by the 1955 Act. The defect relating to unreasonable restrictions stood removed by the First Constitution Amendment Act while the defect relating to compensation was also removed by the legislature by enacting Section 11 in the 1955 Act which made provision for payment of compensation to the affected operators. In the instant case therefore the legislature had legislative competence over the subject-matter and it removed the defects which the Supreme Court had found in the 1951 Act. Even Section 19 of the 1955 Act which validated the earlier schemes made provision for payment of compensation to the affected operators. In my opinion, therefore, the legislature could validate the earlier schemes and could legally reenact the law giving it retrospective effect to bind the past transactions. For the same reasons the law laid down in Firm Bengali Mal v. Sales Tax Officer (AIR 1958 All 478) (FB) and Municipal Corporation case, ((1970) 2 SCC 280 : AIR 1970 SC 1292) is not applicable to the present case. In those cases the validating provisions were found ineffective because the legislature had not reenacted the law nor the defects pointed out by the court had been removed.
24. It was then urged that Sections 19 and 20 did not in fact achieve the purpose for which those provisions were enacted. The material portions of Sections 19 and 20 are set out below:—
“19. Validation of proceedings and actions—
(1) Subject to the right of any person to receive compensation, if any, under Section 11 in respect of cancellation of a permit or curtailment of a route covered by it, but without prejudice to the provisions of any other law for the time being in force—
(a) all orders made, actions or proceedings taken, directions issued or jurisdiction exercised by any authority under or in accordance with the provisions of the U.P State Road Transport Act, 1950, or deemed under the said Act, to have been so made, taken, issued or exercised, shall be deemed to be as good and valid in law as if such orders, actions, proceedings, directions and jurisdictions had been duly made, taken issued or exercised under this Act, any judgment, decree, order or decision of any court or authority notwithstanding;
……………………
(2) Without prejudice to the generality of the provisions of clause (a) of sub-section (1) it is hereby declared that—
(a) every route on which the State Road Transport Service was operating on the appointed date and every such service shall be for purposes of this Act be deemed to be a route specified in the notification under Section 3, and the service operating under a scheme duly prepared and published under and in accordance with Sections 4 to 8:
……………………
20. (2) For the removal of doubts, it is hereby declared that this repeal or the repeal of the U.P State Road Transport Act, 1950, by the aforesaid Ordinance shall not prejudice or affect the validity of—
(a) any State Road Transport Service or order referred to in clause (a) of subsection (1) of Section 13 of the said Act and they shall continue to be as valid in law as if the said Act had not been repealed;
(b) anything done or any action taken including any appointment or application made, notification, order, instruction or direction issued, rule, form, bye-law or scheme framed, certificate, permit or licence granted and registration effected under the said Act or the Ordinance shall, as far as it is not inconsistent with the provisions of this Act, continue in force and be deemed to have been done or taken under the corresponding provisions of this Act.”
25. Section 19(1)(a) seeks to validate all orders made, actions or proceedings taken, directions issued or jurisdiction exercised under the 1951 Act and for that purpose the legislature created a legal fiction that all the orders issued, proceedings taken or actions taken or jurisdiction exercised under the 1951 Act shall be deemed to have been issued, taken or exercised under the corresponding provisions of 1955 Act. Section 19(1)(a) thus validated the orders and notifications issued or the Schemes framed under the 1951 Act while sub-section (2) sought to validate the operation of the State Transport Service on the routes on which the State Road Transport Undertaking may have been plying its vehicles on the appointed date namely 4th February, 1955, and for that purpose the legislature created a legal fiction that the operation of the State Road Transport Services on such routes shall be deemed to be in pursuance of the scheme duly prepared and published in accordance with the provisions contained in Sections 4 to 8 of the 1955 Act. Section 19(1)(a) was general in nature to validate all actions taken or orders or notifications issued under the 1951 Act which would include a scheme notified under that Act, while sub-section (2) made special provision to validate the operation of the vehicles of State Transport Undertaking even though such operation may be in the absence of any scheme. The operation of the State Transport Undertaking vehicles in the absence of any scheme framed under a valid law was without any legal sanction, the same was rendered illegal. The legislature therefore sought to validate the operation of the State Transport Services by creating a legal fiction under sub-section (2) of Section 19 of the 1955 Act. In my opinion in the present case the notification dated 12th February, 1951 issued under sub-section (1) of Section 13 of the 1951 Act notifying the Meerut-Delhi route stood validated by Section 19(1)(a) of the 1955 Act, but even if no valid scheme had been framed under the 1951 Act the exclusive operation of the Motor Vehicles was validated by the deeming provisions of sub-section (2) of Section 20 of the 1955 Act because the State Transport Service was operating on Meerut-Delhi route on 4th February, 1955.
26. Sri Khare then urged that Section 19(2)(a) of the 1955 Act could not validate the operation of the Meerut-Delhi route as U.P Government Roadways were plying in illegal manner on the said route without obtaining any permit. He placed reliance on State of Uttar Pradesh v. Inter-State Transport Appellate Tribunal (AIR 1971 All 488). In that case a Division Bench of this Court held that the U.P Government Roadways was not exempt from obtaining permits under the provisions of the Motor Vehicles Act for plying its vehicles on a notified route. It is noteworthy that in that case the interpretation of Section 19(2)(a) was neither raised nor considered.
27. Sri Khare then relied upon the judgment of a Division Bench in Jagat Nath Wahal v. State (Special Appeal No. 25 of 1970 (All) decided by the Lucknow Bench on 9-4-1971). The Division Bench while interpreting the expression “operating” occurring in subsection (2)(a) of Section 19 of the 1955 Act, held that it implied plying of State Road Transport Services in accordance with law and not in violation of law. The Bench held that since the U.P Government Roadways had not obtained permits as required by Section 42 of the Motor Vehicles Act, the plying of their services on Delhi-Agra route was illegal. The Bench was of the view that the legislature in enacting Section 19(2)(a) of the Act contemplated that the operation of Road Transport Services must be in accordance with law and therefore any illegal or unauthorised operation of State Road Transport Service could not be validated under Section 19(2)(a) of the Act and as such the route could not be treated a notified route under the said provision. With profound respect to the learned Judges I am unable to agree with the interpretation of Section 19(2)(a) of the 1955 Act. In my opinion, the legislature intended that even if the operation of State Transport Services was not in accordance with law, the operation should be treated valid as if the services were being operated in pursuance of a validly framed scheme under the 1955 Act. The plain meaning of the expression “operating” in my opinion is that the State Road Transport Services were being plied on the route on the aforesaid date namely the 4th February, 1955. The setting and the context in which clause (2)(a) was enacted must be taken into account in interpreting the expression “operating”. As already discussed, the legislature was keen to ensure the operation of the U.P State Vehicles on the route as the scheme framed under the 1951 Act had been declared void. The deeming provision contained in Section 19(2)(a) pre-supposed that the operation of the vehicles of the State Transport Undertaking was not in accordance with law and for that reason a necessity arose to validate the operation of vehicles. The interpretation placed by the learned Judges of the Division Bench defeats the very purpose for which the legislature enacted Section 19(2)(a). Moreover, the violation of any provision of the law in plying its vehicles by the State Transport Undertaking cannot affect the validity of the deeming provision nor it could affect the nature and character of a notified route. Take a case where admittedly the route is notified but the vehicles of the State Transport Undertaking ply on that route in violation of law, for example, without obtaining any fitness certificate which is mandatory under the provisions of the Motor Vehicles Act. In plying their vehicles without fitness certificate, the State Transport Undertaking may be guilty of an offence for which it may be liable to punishment but that breach of law cannot change the nature of the notified route. It is conceded that the route was not denotified because the vehicles of the State Transport Undertaking were committing breach in plying its vehicles.
28. In Special Appeal No. 15 of 1972 (All) (Jagannath Wahal v. State Transport Undertaking) decided on 9-10-1972, a Division Bench of this Court upheld the judgment of brother C.S.P Singh, J. in holding that the Lucknow-Kanpur route was a notified route and no private operator was entitled to obtain a stage carriage permit on that route. The Division Bench held that the scheme framed under the 1951 Act for exclusive operation of the State Transport Services was validated by Section 19 of the 1955 Act. Similar argument as raised before me in the present case was repelled and it was held that Section 19(1)(a) was wide enough to validate any schemes or notifications issued under 1951 Act. The Division Bench did not agree with the interpretation of Section 19(2)(a) as given by the other Division Bench in Special Appeal No. 25 of 1970. In Special Appeal No. 15 of 1972, both the learned Judges, O.P Trivedi as well as Jagmohan Lal, JJ. disagreed with the view expressed by the Division Bench in Special Appeal No. 25 of 1970, but since the scheme relating to Lucknow-Kanpur route was upheld on the interpretation of Section 19(1)(a) the learned Judges did not refer the matter to larger Bench. In the instant case also, since the notification dated 12th February, 1951, stood validated by Section 19(1)(a) of the Act, it is not necessary to invoke the provisions of Section 19(2)(a) for upholding the validity of the notification dated 12th February, 1971. I therefore do not consider it necessary to refer the matter to a Larger Bench.
29. In Janta Motor Transport Co. v. State (Special Appeal No. 883 of 1967 connected with Special Appeal No. 885 of 1967), decided on 17-9-1968 (All) a Division Bench of this Court consisting of S.N Dwivedi and Gangeshwar Prasad, JJ. considered the scope of Section 19 of 1955 Act. S.N Dwivedi, J. speaking for the Bench held that Section 19(1)(a) contained a general validating provision, while sub-section (2) of Section 19 was illustrative of the general provision which sought to validate certain things, namely, the continued operation of the State Transport Services on every route on which the State Road Transport Services were already operating on the appointed date. The Bench held that the notification dated 12th February, 1951, notifying the Moradabad-Meerut route stood validated by Section 19 of the 1955 Act and the Moradabad-Meerut route continued to be notified route and no private operator was entitled to obtain a permit on that route. It is noteworthy that the Meerut-Delhi route was also notified by the same notification and therefore the law laid down by the Division Bench in Janta Motor Transport case is fully applicable to the present case. The respondents' contention, therefore, cannot be accepted.
30. Sri Khare then urged that the notification dated 12-2-1951 did not contain any scheme, it merely notified the plying of vehicles of the U.P State Road Transport Services on various routes of the State. The necessary particulars and details of a scheme as required by the 1951 Act were not contained in the notification and there was no prohibition contained in that notification excluding operation of vehicles on the Meerut-Delhi route by any other private individuals. A copy of the notification dated 12-2-1951 has been filed as Annexure I to the petition. During the course of arguments a copy of the Gazette containing that notification was produced before me. The notification was issued in pursuance of the provisions of Section 13 of Act II of 1951. Section 13 was enacted to validate the plying of the State Road Transport Services on various routes of the State which had been operating even prior to the enactment of 1951 Act. The State Government was plying vehicles on various routes of the State including the Delhi-Meerut route under executive orders without there being any law. After the decision of Moti Lal' case, AIR 1951 All 257 (FB) the Legislature enacted U.P Act No. II of 1951 and in that connection it sought to validate the plying of the State Road Transport Services on the various routes. Section 13(1)(b) laid down that every route on which State Road Transport was operating on the appointed date viz., 9-2-1951 and every such service shall for purpose of the Act be deemed, as the case may be, to be a route specified in a notification issued under Section 3, and the service operating under a scheme duly prepared and published under and in accordance with Sections 4 and 5 provided that the State Government published in the Official Gazette within 15 days of the commencement of the Act as to the aforesaid road transport service providing as far as may be, for all or any of the matters specified in sub-section (2) of Section 4 and the scheme so published shall be and be deemed to be the scheme duly confirmed and published under sub-section (3) of Section 5 thereafter the route to which it relates shall be called a notified route and the provisions of Sections 6 and 7 shall be applicable thereto. It is conceded that the State Government published in the Official Gazette a notification within 15 days of the enforcement of the Act in compliance with the provisions contained in Section 13(1)(b). Once the requirement of Section 13(1)(b), was complied with and a notification was published in the Gazette the routes mentioned in that notification were deemed to be notified routes and the consequences contained in Sections 6 and 7 automatically ensued. Consequently no other person except the State Road Transport Undertaking was entitled to ply vehicles on the notified route. The notification which was published in the Gazette dated 12-2-1951 expressly mentioned the Meerut-Delhi route. It is therefore reasonable to hold that the Meerut-Delhi route became a notified route and no other person was entitled to obtain any permit for plying vehicles on that route. The contention of Sri Khare that the notification did not contain necessary details or particulars as contemplated by Sections 4 to 8 of 1955 Act and further it did not contain any prohibition, therefore it was not a scheme in accordance with the Act and the route was not a notified route is untenable. Section 13(1)(b) laid down that the notification need not be comprehensive one. It merely required details as far as possible including the name of the route, the services which were being run and the date of the commencement of the State Transport Service and the number of services by others on the route or part of it. The notification contained seven columns. A careful perusal of those columns make it clear that on the Meerut-Delhi route 66 State Road Transport Services were being provided exclusively by the State Government with effect from 1-3-1950. In my opinion the notification fully complied with the requirements laid down in Section 13(1)(b) of the Act. A similar contention was repelled by a Division Bench in interpreting the notification dated 12-2-1951 in Special Appeal No. 883 of 1967 connected with Special Appeal No. 885 of the 1967 (supra). After a detailed discussion the Division Bench held that all matters mentioned in sub-section (2) of Section 4 were not required to be specified in each and every scheme. The Bench further held that it was not necessary to state in the notification that private bus operators were prohibited from operating on the route. Once the State Government was operating its vehicles exclusively on the Meerut-Delhi route and if that was notified the consequences contemplated by Section 7 of the 1951 Act automatically ensued, therefore by necessary implication the notification contained a provision prohibiting the private bus operators from operating on the Meerut-Delhi route. The notification dated 12-2-1951 contained a scheme in respect of Meerut-Delhi route which was published within 15 days of the enforcement of the 1951 Act as a result of which the said route was deemed to be a notified route under that Act. The notification dated 12-2-1951 is not vitiated on account of any lack of necessary particulars or details.
31. Lastly it was urged that the Regional Transport Authority, Meerut had granted permits to private operators for certain routes which overlap portions of Meerut-Delhi route, as such the authorities themselves were not treating the route as a notified route. The grant of permit for other route which may be overlapping a portion of Meerut-Delhi route stands on a different footing. Even though such permit could legally be granted, the character and nature of Meeruti Delhi route could not be changed and no permit to a private operator on Meerut-Delhi route could be granted. Moreover, if the transport authorities are granting permit in illegal manner, that can hardly be a ground to treat the said route a non-notified route available for grant of permit to private operators. I therefore find no merit in this contention.
32. To sum up, my conclusions are that the notification dated 12th February, 1951, was validated by the 1955 Act and the Meerut-Delhi route continued to be a notified route with the result no private operator could legally obtain any permit on that route.
33. The transport authorities, namely the State Transport Authority and the Appellate Tribunal had no jurisdiction to entertain any application under Chapter IV of the Motor Vehicles Act or to grant any stage carriage permit on the said route to any private operator. The schemes framed by the State Government in respect of inter-Statal route were valid and if there was any lacuna, the same stood removed by the Parliamentary legislation, namely, Section 135 of the Motor Vehicles Act, 1939.
34. In the result the petition succeeds. The order of the State Transport Appellate Tribunal dated 27th February, 1973, is quashed. In the circumstances of the case parties shall bear their own costs.
35. Petition allowed.