Bhikaji Narain and Ors. Vs. The State of Madhya Pradesh and Anr.

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Article 13(1) had the effect of nullifying or rendering the existing law which had become inconsistent with Article 19(1)(g) read with clause (6) as it then stood ineffectual, nugatory and devoid of any legal force or binding effect only with respect to the exercise of the fundamental right on and after the date of the commencement of the Constitution

Case name:Bhikaji Narain and Ors. Vs. The State of Madhya Pradesh and Anr
Case number:1955 AIR 781
Court:The supreme court of India
Bench:JUSTICE Sudhi Ranjan das, JUSTICE Natwarlal H. Bhagwati, JUSTICE Vekatrama Iyer, JUSTICE Syed Imam Jaffer, JUSTICE Chandrasekhara Aiyar
Decided on:SEPTEMBER 29, 1955
Relevant Act/Sections:C.P. & Berar Motor Vehicles (Amendment) Act, 1947, Article 13, 19(6), 31(2) of the constitution, Section 299 of the Government of India Act, 1935, section 43, 58 of the Central Act
  • BRIEF FACTS AND PROCEDURAL HISTORY:
  • The petitioners work as stage carriage operators under permits granted. Originally permit granted under way for a period of not more than 5 years and not less than 3 years and a permit holder applying for renewal of the permit get preference over new applicants for permit over the same route and would ordinarily get such renewal.
  • The amendments were introduced by the C.P. & Berar Motor Vehicles amendment Act, 1947 into the Motor Vehicles Act, 1939. In exercise of the powers conferred by new amendments a notification was issued on the 4th Feb, 1955. The result of these amendments was that power was given to the Government to (i) to fix fares or freights throughout the Province or for any area or for any route, (ii) to cancel any permit after the expiry of 3 months, (iii) to declare its intentions to engage in the business of road transport generally or in any area specified, (iv) to limit the period of the license to a period less than the minimum specified in the Act, (v) to direct the specified transport authority to grant a permit.
  • Petition Nos. 189 to 193 of 1955 filed under Article 32 of the Indian Constitution challenging the Constitutional validity of the C.P. & Berar Motor Vehicles Amendment Act, 1947 (Act III of 1948) which amended the Motor Vehicles Act, 1939 (Central IV of 1939) which gave extensive powers  to the Provincial Government including power to create monopoly of the motor transport business in its favor to the exclusion of all motor transport operators..
  • On the 18th of June 1951 Section 3(1) of the Motor Vehicles Act, 1939 was amended, a new sub clause was substituted which was expressly made retrospective. Clause 6 of the Article 19 of the Indian Constitution was also amended which empowers the government with some privileges.
  • PROCEDURAL HISTORY:
  • The petitioners contended that the law having become void for unconstitutionality under Article 19(1)(g) and 31(2) as was inconsistence with Art. 13(1) was dead and could not be revived by a subsequent amendment of the constitution, removing the constitutional objection. On the other hand, the contention of the respondents before the court were is that although the amending Act on the authority of the decision by the apex court in Shagir Ahmad v. The State of U.P. and ors. became on and from the 26th January 1950 void as against the citizens to the extent of its inconsistency with the provision of article 19(1)(g) but after the First Amendment Act, 1951 when Clause 6 of the Article was amended by the constitution the amending Act ceased to be inconsistence with the Fundamental rights guaranteed under Article 19(1)(g) read with the amended clause (6) of that article, as it now permits the creation of law of state monopoly of motor transport business.
  • ISSUE BEFORE THE COURT:
  • Whether the law inconsistent with Article 13(1) is dead? and
  • Whether the same law can be revivified by any subsequent amendment in the Constitution?
  • RATIO OF THE COURT:
  • The Court finds that extensive powers were given to the government to carry out and implement the policy of nationalization of the road transport business adopted by the government. The amending Act (III of 1948) was, at the commencement of the Constitution, an existing law. The new provisions introduced by the Act authorized the government to exclude all private motors operators from the field of transport business. The Court said, Prima Facie it was an infraction of the provisions of the Article 19(1)(g) of the Constitution and would be void under article 13(1) unless this invasion could be justified under the Clause (6) of article 19 on the ground that it imposed reasonable restrictions on the exercise of the right under Article 19(1)(g) in the interests of the general public.
  • The Court applied the ratio of the Keshavan Madhava Menon V. St. of Bombay where it was decided that the word “void” in Article 13 is no longer res integra. As per Article 13(1) cannot be said to have obliterated the entire inconsistence law, such law existed and continued to be in force after the commencement of the constitution with respect to the persons who were not citizens and could not claim the fundamental rights
  • The court observed that on and after the commencement of the Constitution the existing law, as a result of its becoming inconsistent with the provisions of Article 19(1)(g) read with clause (6) as it then stood, could not be permitted to stand in the way of the exercise of that fundamental right. Article 13(1) by reason of its language cannot be read as having obliterated the entire operation of the inconsistent law or having wiped it out altogether from the statute book. Such law existed for all past transactions and for enforcement of rights and liabilities accrued before the date of the Constitution, as was held in Keshavan Madhava Menon’s case.
  • The law continued in force, even after the commencement of the Constitution, with respect to persons who were not citizens and could not claim the fundamental right. In short, Article 13(1) had the effect of nullifying or rendering the existing law which had become inconsistent with Article 19(1)(g) read with clause (6) as it then stood ineffectual, nugatory and devoid of any legal force or binding effect only with respect to the exercise of the fundamental right on and after the date of the commencement of the Constitution. 
  • Therefore, between  26 January 1950 and the 18 June 1951 the impugned Act could not stand in the way as it was inconsistence with the Fundamental right but, the true position of the impugned Act became as it were eclipsed for the time being by the fundamental right, the effect of First Amendment Act 1951 removed the shadow to make the impugned Act free from all infirmity.
  • The true effect of Article 13(1) is to declare an Act inconsistent in violation of any Fundamental right. It is overshadowed by the Fundamental right and remains dormant but it is not dead therefore with the Amendment in Clause 6 of Article 19 of the constitution the provisions of the impugned law were no longer inconsistent and the result is that the impugned Act is once again began to operate.
  • DECISION HELD BY COURT:
  • In this case the judgement was given by JUSTICE SUDHI RANJAN DAS that the court concludes that the law declaring the intention of the state to take over the bus routes to the exclusion of all other motor transport operators was perfectly constitutional.
  • The court said that the contentions put by the respondents as to the first amendment act 1951 are well founded while the objections against them by the petitioners are untenable.
  • The court dismissed the appeal and made no order as to costs.
Case Brief
Case Judgement

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