# Central Bank of India Ltd v. Ram Narain. Mahajan C. ]

- **Citation:** [1955] 1 S.C.R. 707
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Case number:** Civil Miscellaneous Writ No. 414 of 1953
- **Bench:** M1mR CHAND MAHAJAN C.J, MuKHERJEA, S. R. DAs, VIVIAN BosE, Ghulam Hasan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/central-bank-of-india-ltd-v-ram-narain-mahajan-c-383
- **Pages:** 29

## Headnote

Constitution of India, Arts. 14, 19(1) (g), 19(6), 31(2), 301Highway-lts origin and use-Citizen's rights in respect of highways-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 Constit,~tion-Subsequent amendment of Constitution
if can validate a prior unconstitutional Act.
1954
Central Bank of
India Ltd.
v.
Ram Narain.
Mahajan C. ],
1954
October I3f
1954
Sa1hfr. Ahmad
v.
The State of
. U.P.
and Olhtrs.
708
SUPREME COURT REPORTS
[1955]
A highway has· its origin, apart
fro1n 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 _ a~nd 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 in1pose 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
path\vays cannot be denied to him on
the ground that the State owns the highways.
G. S. S. Motor Service v. State
of
Madras ((1952] 2 M. L. J.
894) referred to with appronl.
-
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.
lt 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 pennissible under clause (6) of
<"
that articl'!.
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
an1endment 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 new clause.
A1nendment of the Constitution which came later cannot be
invoked to validate an earlier legislation \Vhich 1nust be regarded
as unconstitutional when it \Vas passed, because a statute void for
unconstitutionality is dead and cannot be vitalised by a subsequent
amendment of the Constitution removing the
~onstitutional objection but 1nust be re-enacted.
Although the normal use of the word "restriction" seems to
be in the
sense of limitation
and not
~xtinction but (without
expressing any final opinion on the matter) if the word
0 restric·
fr'
tion" does not
include total
prohibition then the impugned
Act
cannot be justified under Art. 19( 6) of the Constitution and it would
-
-
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S.C.R.
SUPREME COURT REPORTS
7CB
be void
unless
supported by Art. 31.
If however the word
"restriction" in Art.
19( 6) be taken in certain
circumstaru:es 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 inter

## Text

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· S.C.R.
SUPREME COURT REPORTS
707
The learned
Attorney-General
argued that Ram
Narain was a native Indian subject of
Her
Majesty
before the 15th August, 1947, and
that description
continued to apply to him after the 15th
August, 1947,
whether he was in India or in Pakistan, but we think
that the. description 'Native subject of
Her Majesty'
after the 15th of August, 1947, became
applicable m
the territory now constituted India only to residents
of provinces
within the boundaries of India, and in
Pakistan to residents of provinces within the boundaries
of
Pakistan and till the time that Ram Narain actually
landed on the soil of India
and
took up permanent
residence therein he cannot be described to be domiciled
m
India or
even a
Native
Indian subject of
His
Majesty domiciled in India.
For the reasons given above we are of the opinion
that the decision of the High Court that Ram Narain
could not be tried in any Court in India for offences
committed in Mailsi in November, 1947, is right and
that the Provincial
Government had no power
under
section 188, Criminal Procedure Code, to accord sanction
to his prosecution.
The result is that the appeal fails and is dismissed.
Appeal dismissed.
SAGHIR AHMAD
ti.
THE STATE OF U. P. AND OTHERS.
(With Connected Appeal)
[M1mR CHAND MAHAJAN C.J., MuKHERJEA,
S. R. DAs, VIVIAN BosE and GHULAM HASAN JJ.]
Constitution of India, Arts. 14, 19(1) (g), 19(6), 31(2), 301Highway-lts origin and use-Citizen's rights in respect of highways-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 Constit,~tion-Subsequent amendment of Constitution
if can validate a prior unconstitutional Act.
1954
Central Bank of
India Ltd.
v.
Ram Narain.
Mahajan C. ],
1954
October I3f
1954
Sa1hfr. Ahmad
v.
The State of
. U.P.
and Olhtrs.
708
SUPREME COURT REPORTS
[1955]
A highway has· its origin, apart
fro1n 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 _ a~nd 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 in1pose 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
path\vays cannot be denied to him on
the ground that the State owns the highways.
G. S. S. Motor Service v. State
of
Madras ((1952] 2 M. L. J.
894) referred to with appronl.
-
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.
lt 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 pennissible under clause (6) of
<"
that articl'!.
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
an1endment 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 new clause.
A1nendment of the Constitution which came later cannot be
invoked to validate an earlier legislation \Vhich 1nust be regarded
as unconstitutional when it \Vas passed, because a statute void for
unconstitutionality is dead and cannot be vitalised by a subsequent
amendment of the Constitution removing the
~onstitutional objection but 1nust be re-enacted.
Although the normal use of the word "restriction" seems to
be in the
sense of limitation
and not
~xtinction but (without
expressing any final opinion on the matter) if the word
0 restric·
fr'
tion" does not
include total
prohibition then the impugned
Act
cannot be justified under Art. 19( 6) of the Constitution and it would
-
-
-
..
S.C.R.
SUPREME COURT REPORTS
7CB
be void
unless
supported by Art. 31.
If however the word
"restriction" in Art.
19( 6) be taken in certain
circumstaru:es 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
c1t1zens
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
against the
equal
Constitution.
Act: is not void on the ground that it offends
protection rule embodied in Art. 14 of the
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 Ei:cise Commissioner, etc. ([1954] S.C.R. 873)
distinguished.
West Bengal v. Subodh Gopal Bose and Others ([1954] S.C.R.
587) and Dwarkadas Shrinivas v.
The
Sholapur Spinning anti
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
Prad.,sh
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.LR. 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
Stcretary of State (1861 5 B.H.C.R. Appendix 1) referred to,
1954
Sa1fiir A.hmatl
v.
The State"',,of
U.P.
11nd Others.
.1954
Sag/Ur Ahmad
v.
· Tm Statt ef
U.P.
and Others.
710
SUPREME COURT REPORTS
[1955]
CIVIL
APPELLATE
JuRISDICTION:
Civil
Appeals
' Nos: 182 and 183 of 1954.
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 (!. 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
m
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
Bulandshahr-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 with 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 throughfares.
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
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S.C.R.
SUPREME COURT REPORTS
711
calling in aid the provisions of the · Motor Vehicles Act
itself.
Under section 42(3) of the Act as mentioned
:above, the
Governmrnt 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 subsection, 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 legisla-
.tion would probably have to be justified under article
19(6) of the Constitution.
As a result of this decision
the
Transport
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 GovernmcnJ 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
1954
. Sag!1ir Ahmad
v.
The Stafe ef
'U.P.
and Others.
Mukherjea ].
1954
Saghir Ahmad
v.
The State of
U.P.
«nd -Others.
• Muk/,,rjea J.
712
SUPREME COURT REPORTS
[1955}
became law on and from the 10th of February, 1951.
It
1s the constitutional
validity
of this enactment
which is the subject-matter of contest in these present
proceedings.
The preamble to the Road Transport Act (hereinaftercalled "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 111 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 subserv111,g the common good, so to direct, it may declare
that the Road Transport Services 111
general,
or any
particular class of such service on
any route or portion
thereof,
shall
be
run
and
operated
by
the State·
Government exclusive! y or by the State Gov,ernment
in conjunction with
railway
or partly
by the State
Government
and
partly
by others
in
accordance
with tl1e 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
m
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 rnn on those roads. The
State Government shall be authorised in all such cases
to direct
the
dispensation
of the
State Trans port
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 9J
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.S.C.R.
SUPREME COURT REPORTS
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
BulandshahrDelhi route, shall be run 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 appellants 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
Ace was discriminatory in its character
and
contravened
the
provisions of article 14 of the
Constitution ;
(2) that it confhcte<l 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 pro-
.vision for compensation as is required under article 31(2)
1954
Saghir Afzmad"
v.
The State of
U.P.
and Othen.
1954
Saghir Ahmad
v.
The Stale of
. U.P.
and Others.
· Mukherje.a J.
714
SUPREME COURT REPORTS
[1955]
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 judg-
. ments dated the 17th of November,
1953, the learned
Judges repelled all
the contention·s of the
petitioners
and dismisml 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 Swamp
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) or the Constitution which can. be
said to have been violated by the impugned legislation,
and whether the
Act has deprived them of any 'pmperty' 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
uptil 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
Comtitution 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 easement and as such can be reckoned as property
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S.C.R.
SUPREME COURT REPORTS
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 ro 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.
1954
Saghir Ahmat!
v.
The State of
U.P.
and Others.
Mukhnjea j.
•
1954
Saghi< Ahmad
v.
The State of
U.P.
and Others.
Mukheefea].
•
716
SUPREME COURT REPORTS
[1955]
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 (1 ).
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 ( '). The law has thus
been stated
in Halsbury's Laws of England(•) :
"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
Qnce acquired will extend to more modem forms
of
traffic reasonably similar to 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
jn modem 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 weight of vehicles on the road in any way it
(1) Ibid page 28.
(3) Vol. 16, p. 185.
(2) Ibid page 35.
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S.C.R.
SUPREME COURT REPORTS
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 cnsunng
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
m
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 gam
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
Commi~sion (2), 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 set!S fit."
(1) 68 L. E. 596; 264 U.S. 140.
(2) 70 L. E. II01, no8.
(3) 77 L. E. 288, 294.
(4) I. L. R. 1951 All. 257.
1954
Saghir Ahmad
v.
The Stak of
U.P.
and Others.
Mukheifea J.
1954·
Saghir. Ahfflad
v.
T k Stai. of
U.P.
and Others.
Mukhffi~a J.
718
SUPREME COURT REPORTS
[19551
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 Motilal v. Uttar Pradesh Government (1 ), and
two of the learned Judges constituting the Full Bench
expressed their
op1mon 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 m a recent decision of the Madras High
Court in C. S. S. Motor Service v. State of Madras ('),
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 m America
had its roots m the doctrine of 'franchise', which 1s
still a recognised
institution
m that country. The
doctrine of 'franchise'
or 'privilege' has its ongm m
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 rn an altered form1 The
place of the royal grants under the
English
Common
Law was taken by the legislative
grants m 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
carrymg on of transport
buses by common carriers on the public· road in Amerirn
is a 'franchise' and not a common law
right, which
could be
claimed
by all citizens and a distinction
1s
made, as the
cases cited above will show, between
contract earners 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
(1) I. L. R. 1951 All. 257.
(2) (1952) 2 M. L. J. 894
...
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•
•
,._-
,
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S.C.R.
SUPREME COURT REPORTS
719
earners 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 m 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 ligitimately complain
if any 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 f acie 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 m the interests of the
geneiral public.
8-88 s. a. India/59.
1954
Saghir Ahmad
v.
The Stall of
U.P.
and Others.
Mukfinjea ].
1954
taghir Ahmad
v.
The State of
U. P.
and Others
Mukherjea J.
720
SUPREME COURT REPORTS
[1~5]
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 practising 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 m
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 m regard to transport
service, as has been done under the Act, could be
justified as
reasonable
restrictions upon the fundamental right enunciated m 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
1s,
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" connotes 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
'
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..
,_,.
... \
S.C.R.
SUPREME COURT REPORTS
721
:altogether unknown. In the case of Municipal Corporation of the City of Toronto v. Virgo( 1 ), Lord Davey while
discussing a statutory power wnferred 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 prohfoition
or prevention of a trade and
the regulation or governance of 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
Yalidity
of the legislation was,
th~t 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
atricle, 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
judged 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.
1954
Saghir Ahmad
v.
The .. State of
U.P.
and Others.
Mukherjea J.
1954
Saghir Ahmad
v.
Tile Sta" ef
U.P.
and Ot!zers.
.........
Mukhtryea ].
722
SUPREME COURT REPORTS
(19551
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 presuppose 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."
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 case of Lokanath
•
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•
•
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•
S.C.R.
SUPREME COURT REPORTS
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 validitv 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.LR. 1952 Orissa 42.
(2) [1954] S.C.R. 873.
1954
Saghir Ahmad
v.
The State of
U.P.
and Others.
Mulc!wdeaJ.
1954
Sa1,hir Ahmad
v,
The Stat< ef
U.P.
and Ot!urs.
Muklulj;a ].
724
SUPREME COURT REPORTS
(19551
of the restriction regard must be had to the nature of
the business and the conditions prevailing in that trade.
......