# SUPREME COURT REPORTS [1959) Supp. DEEP CHAND v. THE STATE OF UTTAR PRADESH AND OTHERS

- **Citation:** [1959] Supp. 2 S.C.R. 8
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Bench:** S. R. Das, N. H. Bhagwati, B. P. Sinha, K. 8-uBBA RAO, K. N. Wanchoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supreme-court-reports-1959-supp-deep-chand-v-the-state-of-uttar-pradesh-and-1698
- **Pages:** 56

## Headnote

Transport Service-Scheme of nationalisation formulated under
State enactment of Amendment of Central Act-Ejfect-Repugnancy
-Constitutional validity of State enactment-Uttar Pradesh Transport Service (Development) Act (IX of r955), s. rr(5)-Motor
Vehicles (Amendment) Act, r956 (roo of r956), Ch. IV A-General
Clauses Act, r897 (roof r897), s. 6-Constitution of India-Articles
I], JI, 245, 246, 254.
These appeals impugned the constitutionality of the Uttar
Pradesh Transport Service (Development) Act, 1955 (U. P. IX of
1955), passed by the State Legislature after obtaining the assent
of the President, and the validity of the scheme of na tionalisation framed and the notifications issued by the State Government
under it. The appellants as permit-holders under the Motor
Vehicles Act, 1939, were plying buses on different 'routes in Uttar
Pradesh along with buses owned by the State Government. The
State Government issued a notification under s. 3 of the impugned Act directing that the said routes along with others should be
exclusively served by the State buses, and followed up that
notification by others under ss. 4 and 8 of the Act. The appellants moved the High Court under Art. 226 of the Constitution
challenging the validity of the said Act and the notifications
therennder. The High Court rejected their petitions and thereafter came into force the Motor Vehicles (Amendment) Act (100
of 1956), inserting Ch. IV A into the Act, which provided for
nationalisation of transport services.
The contentions raised on
behalf of the appellants were,-(1) that the passing of the
Amending Act made the impugned Act wholly void under Art.
254(1) of the Constitution, (2) that the scheme framed under the
impugned Act fell within the purview of s. 68B of the Amending
Act and ceased to be operative and (3) that even 'assuming that
the impugned Act was valid in so far as the scheme \Vas concerned, it violated Art. 31 as it stood before the Constitution (Fourth
Amendment) Act, 1955·
A further contention on the basis of
the proviso to Art. 254(2) was that the impugued Act stood
"·
wholly repealed by the Amending Act, s. 68B of the latter
excluding the operation of the General Clauses Act. It was
contended, inter alia, on behalf of .the State that the amendment
of Art. 31 by the Constitution (Fourth Amendment) Act, 1955.
having removed, before the scheme under the impugned Act had
(2) S.O.R.
SUPREME OOUR'l' REPORTS
yet been framed, the constitutional limitation which that Article
z959
had imposed on the Legislature when it passed the impugned
Act, had the effect of validating that Act passed by it at a time
Dup Chand
when it was subject to the limitation.
v.
'
Held, (per curiam), that the Uttar Pradesh Transport The State 0! Uttar
Service (Development) Act, 1955, did not, on the passing of the Pradesh & Othtrs
Motor Vehicles (Amendment) Act, 1956 (mo of 1956), become
wholly void under Art. 254(1) of the Constitution but continued
to be a valid and subsisting law supporting the scheme already
framed under the U.P. Act.
Even assuming that the Amending
Act had the effect, under Art. 254(2), of repealing the State Act,
such repeal could not nullify the scheme already framed under
that Act, for the provisions of s. 6 of the General Clauses Act
would operate to save it.
Nor could it be said, having regard to the provisions of the
impugned Act and particularly s. u(5) thereof, that it offended
Art. 31 of the Constitution as it stood before the Constitution
(Fourth Amendment) Act, 1955, by failing to provide for the
payment of adequate compensation.
Per Das, C.J., and Sinha, ].-There was no reason why the
doctrine of eclipse as explained in Bhikaji Narain Dhakras v. The
State of Madhya Pradesh, [1955] 2 S.C.R. 589, could not also apply
to a post-Constitution .law that infringed a fundamental right
conferred on citizens alone. Such a law, though shadowed and
rendered ineffective by the fundamental right so far as the
citizens were concerned, would remain effective

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I959
January z5.
8
SUPREME COURT REPORTS [1959) Supp.
DEEP CHAND
v.
THE STATE OF UTTAR PRADESH
AND OTHERS
(and connected appeal)
(S. R. DAS, c. J., N. H. BHAGWATI, B. P. SINHA,
K. 8-uBBA RAO and K. N. WANCHOO, JJ.)
Transport Service-Scheme of nationalisation formulated under
State enactment of Amendment of Central Act-Ejfect-Repugnancy
-Constitutional validity of State enactment-Uttar Pradesh Transport Service (Development) Act (IX of r955), s. rr(5)-Motor
Vehicles (Amendment) Act, r956 (roo of r956), Ch. IV A-General
Clauses Act, r897 (roof r897), s. 6-Constitution of India-Articles
I], JI, 245, 246, 254.
These appeals impugned the constitutionality of the Uttar
Pradesh Transport Service (Development) Act, 1955 (U. P. IX of
1955), passed by the State Legislature after obtaining the assent
of the President, and the validity of the scheme of na tionalisation framed and the notifications issued by the State Government
under it. The appellants as permit-holders under the Motor
Vehicles Act, 1939, were plying buses on different 'routes in Uttar
Pradesh along with buses owned by the State Government. The
State Government issued a notification under s. 3 of the impugned Act directing that the said routes along with others should be
exclusively served by the State buses, and followed up that
notification by others under ss. 4 and 8 of the Act. The appellants moved the High Court under Art. 226 of the Constitution
challenging the validity of the said Act and the notifications
therennder. The High Court rejected their petitions and thereafter came into force the Motor Vehicles (Amendment) Act (100
of 1956), inserting Ch. IV A into the Act, which provided for
nationalisation of transport services.
The contentions raised on
behalf of the appellants were,-(1) that the passing of the
Amending Act made the impugned Act wholly void under Art.
254(1) of the Constitution, (2) that the scheme framed under the
impugned Act fell within the purview of s. 68B of the Amending
Act and ceased to be operative and (3) that even 'assuming that
the impugned Act was valid in so far as the scheme \Vas concerned, it violated Art. 31 as it stood before the Constitution (Fourth
Amendment) Act, 1955·
A further contention on the basis of
the proviso to Art. 254(2) was that the impugued Act stood
"·
wholly repealed by the Amending Act, s. 68B of the latter
excluding the operation of the General Clauses Act. It was
contended, inter alia, on behalf of .the State that the amendment
of Art. 31 by the Constitution (Fourth Amendment) Act, 1955.
having removed, before the scheme under the impugned Act had
(2) S.O.R.
SUPREME OOUR'l' REPORTS
yet been framed, the constitutional limitation which that Article
z959
had imposed on the Legislature when it passed the impugned
Act, had the effect of validating that Act passed by it at a time
Dup Chand
when it was subject to the limitation.
v.
'
Held, (per curiam), that the Uttar Pradesh Transport The State 0! Uttar
Service (Development) Act, 1955, did not, on the passing of the Pradesh & Othtrs
Motor Vehicles (Amendment) Act, 1956 (mo of 1956), become
wholly void under Art. 254(1) of the Constitution but continued
to be a valid and subsisting law supporting the scheme already
framed under the U.P. Act.
Even assuming that the Amending
Act had the effect, under Art. 254(2), of repealing the State Act,
such repeal could not nullify the scheme already framed under
that Act, for the provisions of s. 6 of the General Clauses Act
would operate to save it.
Nor could it be said, having regard to the provisions of the
impugned Act and particularly s. u(5) thereof, that it offended
Art. 31 of the Constitution as it stood before the Constitution
(Fourth Amendment) Act, 1955, by failing to provide for the
payment of adequate compensation.
Per Das, C.J., and Sinha, ].-There was no reason why the
doctrine of eclipse as explained in Bhikaji Narain Dhakras v. The
State of Madhya Pradesh, [1955] 2 S.C.R. 589, could not also apply
to a post-Constitution .law that infringed a fundamental right
conferred on citizens alone. Such a law, though shadowed and
rendered ineffective by the fundamental right so far as the
citizens were concerned, would remain effective so far as noncitizens were concerned. The moment the shadow was removed
by a constitutional amendment, the law would apply to citizens
without re-enactment.
John M. Wilkerson v. Charfrs A. Rahrer, (1891) !40 U.S. 545;
35 L. Ed. 572 and Bhikaji Narain Dhakras v. The State of Madhya
Pradesh, [1955] 2 S.C.R. 589, referred to.
·
The question whether a post-Constitution law that infringed
a fundamental right guaranteed to all persons, citizens or noncitizens, would be subject to that doctrine should, however, be
left open.
Held, (per Bhagwati, Subba Rao and Wanchoo, JJ,), that it
was apparent from the provisions of Arts. 254, 246 and 13 of the
Constitution, read together, that the power of Parliament and
the State Legislature to make laws with regard to any of the
matters enumerated in the relevant list in the Seventh Schedule
'\Vas subject to the provisions of the Constitution including
Art. 13. There was a clear distinction between the two clauses
of Art. 13.
Under cl. (1), pre-Constitution law subsisted except
to the extent of its inconsistency with the provisions of Part III
whereas under cl. (2) any post-Constitution law contravening
those provisions was a nullity from its inception to the extent of
such contravention. The words "any law" in the second line of
;;:
10
SUPREME COURT REPORTS
[1959] Supp.
I959
cl. (2) meant an Act factually passed in spite of the prohibition
contained therein, and did not pre-suppose that the law made
Deep Chand
was not a nullity. That prohibition went to the root and limited
v.
the State's power of legislation and law made in spite of it was a
The State of Uttar still-born one.
•
Pradesh G -Others
In construing the constitutional provisions relating to the
powers of the legislature embodied in Arts. 245 and 13(2) of the
Constitution, no distinction should be 1nade as bet\veen an affirn1ative and a negative provision, for both are limitations on that
power.
]{. C. Gajapati N rirayan Deo v. The Staie of Orissa, [1954]
S.C.R. 1, referred to.
A distinction, well-recognised in judicial decisions, had,
however, to be made in judging the effect of law made in transgression of the limits fixed by Arts. 245 and 13(2), between an
Act that was void from its inception and one that, though valid
\Vhen made, was rendered unconstitutional later on.
On that
distinction was based the principle that an after-acquired power
could not validate a statute and a law validly made could take
effect when the obstruction was removed.
A review of the relevant authorities and judicial decisions
clearly established, (1) that affirmative conferment of power to
make laws subject-wise and the negative prohibition from
infringing any fundamental rights were but two _aspects of want
of legislative power, (2) that by expressly making the power to
legislate on the entries in the Seventh pchedule subject to other
provisions of the Constitution, that power was subjected to the
limitations laid down in Part III of the Constitution, (3) that,
therefore, a Jaw in derogation or in excess of such power would
be void ab initio either wholly or to the extent of the contravention and that (4) the doctrine of eclipse could be invoked only
in the case of a law that was valid when made but was rendered
invalid· by a supervening constitutional inconsistency.
Newberry v. United State, (1912) 265 U.S. 232; 65 L. Ed. 913;
John M. Wilkerson v. Charles A. Rohrer, (1891) 140 U.S. 545; 35
L. Ed. 572; Carter v. Egg and Egg Pulp Marketing Board, (1942)
66 C.L.R. 557; Kesha.van Madhava Menon v. The Staie of Bombay,
[195r] S.C.R. 228; Behram Khurshed Pesikaka v. The State of
Bombay, [1955] l S.C.R. 589; Saghir Ahmed v. The State of U. P.
[1955] l S.C.R. 707; Ram Chandra Balai v. State of Orissa, [1956]
S.C.R. 28 and Pannalal Binjraj v. Union of India, [1957] S.C.R.
233, referred to and discussed.
The tests of repugnancy between two statutes, one passed by
tte Parliament and the other by the State Legislature, were, (r)
whether there was a direct conflict between them, (2) whether
Parliament intended to lay down an exhaustive code in respect
of the subject-matter replacing the Act of the State Legislature,
and (3) whether both the laws occupied the same field.
A comparison of the provisions of the two Acts indicated
•
••
\'
(2) S.C.B,.
SUPREME COURT REPORTS
11
J •
J
that both were intended to operate in respect of the same subject
z959
matter and the same field but only in respect of the schemes
initiated after the Amending Act had come into force, the latter
Deep Chand.
Act having no retrospective effect. The State Act must, therev.
fore, yield place to the Central Act to that extent and become The State of Uttar
void only in respect of schemes framed under the Central Act.
Pradesh &
Others
Keshavan Madhava Menon v. The State of Bombay, [1951]
S.C.R. 228, applied.
CIVIL APPELLATE JURISDICTION:
Civil
Appeals
Nos. 380 to 389, 391 to 399, 401, 429 and 431 to 434
of 1958.
Appeals from the judgment and decree dated December 19, 1956, of the Allahabad High Court in Civil
Misc.
Writs Nos. 1574, 1575, 1576, 1577, 1578, 1579,
1444, 1584, 1586, 1589, 1631, 1632, 1634, 1635, 1636,
1694, 1695, 1697, 1704, 1707, 3726, 1647, 1948 and
1949 and 1956.
M. K. Nambiyar, Shyam Nath Kacker, J.B. Dadachanji, S. N. Andley and Rameshwar Nath, for the
appellants (in C. As. Nos. 380-385, 387-389, 391-399
and 401 of 1958).
S. N. Kacker and J. B. Dadachanji, for the appellant (in C. A. No. 386/58).
Naunit Lal, for the appellants (in C. As. Nos. 429 &
431-434/58).
K. B. Asthana & G. N. Dikshit, for the respondents.
1959. January 15. The judgment of D11s, C. J.,
and Sinha, J., was delivered by Das, C. J. The· judgment of Bhagwati, Subba Rao and Wanchoo, JJ., was
delivered by Subba Rao, J.
DAS, C. J.-We have had the advantage of perusDas c. J. -
ing the judgment prepared by our learned Brother
Subba Rao and we agree with the order proposed by
him, namely, that all the above appeals should be dismissed with costs, although we do not subscribe to all
the reasons advanced by him.
The relevant facts and the several points raised by
learned counsel for the appellants and the petitioners
in support of the appeals have been fully set out in
the judgment which our learned Brother will presently.
deliver and it is not necessary for us to set out the
12
SUPREME COURT REPORTS [1959) Supp.
I959
same here.
'Vithout committing ourselves to all the
reasons adopted by our learned Brother, we agree with
Deep Chand
his following conclusions, namely, (1) that the Uttar
n, Stat:· of uttar Pradesh Transport Service {Development) Act, 1955
Pradesh & Others(Act IX of 1955), hereinafter referred to as the U. P.
Das C. J.
•
Act, did not, on the passing of the Motor Vehicles
(Amendment) Act, 1956 (100 of 1956), hereinafLer ·
referred to as the Central Act, become wholly void
under Art. 254(1) of the Constitution but continued to
be a valid and subsisting law supporting the scheme
already framed under the U. P. Act; (2) that, even if
the Central Act be construed as amounting, under
Art. 254(2), to a repeal of the U. P. Act, such repeal
did not destroy or efface the scheme already framed
under the U. P. Act, for the provisions of s. 6 of the
General Clauses Act saved the same; (3) that the U. P.
Act did not offend the provisions of Art. 31 of the
Constitution, as it stood before the Constitution (4th
Amendment) Act, 1955, for the U. P. Act and in particular s. 11(5) thereof provided for the payment of adequate compensation. These findings are quite sufficient to dispose of the points urged by Mr. Nambiyar
and Mr. Naunit Lal in support of the claims and contentions of their respective clients.
In view of the aforesaid finding that the U. P. Act
did not infringe the fundamental rights guaranteed by
Art. 31, it is wholly unnecessary to discuss the following questions, namely, (a) whether t~e provisions of
Part III of the Constitution enshrining the fundamental rights are mere checks or limitations on the
legislative competency conferred on Parliament and
the State Legislatures by Arts. 245 and 246 read with
the relevant entries in the Lists in the Seventh Schedule to the Constitution or are an integral part of the
provisions defining, prescribing and conferring the
legislative competency itself and (b) whether the doctrine of eclipse is applicable only to pre-Constitution
laws or can apply also to any post-Constitution law
which falls under Art. 13(2) of the Constitution. As,
however, our learned Brother has thought fit to
· embark upon a discussion of these questions, we desire
to guard ourselves 1tgainst
being understood as
}
(2) S.C.R.
SUPREME COURT REPORTS
13
aecepting or acquiescing in the conclusion that the
1959
doctrine of eclipse cannot apply to any post-Constitution law. A post-Constitution law may infringe either
n .. p Chand
a fundamental right conferred on citizens only or a Th• Stat:· of Uttar
fundamental right conferred on any person, citizen or Pradesh & others
non-citizen. In the first case the law will not stand
in the way of the exercise by the citizens of that fundaDas c. J.
mental right and, therefore, will not have any operation on the rights of the citizens, but it will be quite·
effective as regards non-citizens. In such a case the
fundamental right will, qua the citizens, throw a
shadow on tlw law which will nevertheless be on the
Statute Book as a valid law binding on non-citizens
and if the shadow is removed by a constitutional
amendment, the law will immediately be applicable
even to the citizens without being re-enacted. The
decision in John M. Wilkerson v. Charles A. Rahrer (1)
cited by our learned Brother is squarely in point. In
other words the doctri~e of eclipse as explained by
this Court in Bhilcaji Narain Dhakras v. The State of
Madhya Pradesh (2) also applies to a post-Constitution
law of this kind.
Whether a post-Constitution law of
the other kind, namely, which infringes a fundamental
right guaranteed to all persons, irrespective of whether
they are citizens or not, and which, therefore, can
have no operation at all when it is enacted, is to be
regarded as a still born law as if it had not been
enacted at all and, therefore, not subject to the. doctrine of eclipse is a matter which may be open to discussion. On the findings arrived at in this case, however, a discussion of these aspects of the matter do not
call for a considered opinion and we reserve our right
to deal with the same if and when it becomes actually·
necessary to do so.
SuBBA RAO, J.-Tbese twenty-five appeals are by Suoba.Rao J.
certificate under Arts. 132 and 133 of the Constitution
granted by the High Court of Judicature at Allahabad
and raise the question of the validity of the scheme of
nationalization of State Transport Service formulated
by the State Government and the consequential orders
made by it.
(1) (1891) 140 U.S. 545; 35 L. Ed. 572.
(2) [1955] 2 S.C.R. 589.
14
SUPREME COURT REPORTS [1959] Supp.
r959
The said appeals arise out Writ Petitions filed by
D P Ch
d
the appellants in the Allahabad High Court challeng--
"
v. ""
ing the validity of the U. P. Transport Services
Th, State of uua' (Development) Act of 1955, being U. P. Act No. IX
Prnd"h & Othm of 1955 (hereinafter referred to as the U. P. Act), and
the notifications issued· thereunder. All the appeals
Subba Rao J. were consolidated by order of the High Court.
The appellants have been carrying on business as
stage carriage operators for a considerable number of
years on different routes in Uttar Pradesh under valid
permits issued under the Motor Vehicles Act, 1939,
along with buses owned by Government, The U. P.
Legislature, after obtaining the assent of the President
on April 23, 1955, passed the U. P. Act and duly
published it on April 24, 1955.
Under s. 3 of the
U. P. Act, the Government issued a notification dated
May 17, 1955, whereunder it was directed that the
aforesaid routes along with others should be exclusively served by the stage carriages of the Government
and the private stage carriages should be excluded
from those routes. On November 12, 1955, the State
Government published the notification under s. 4 of
the U. P. Act formulating the scheme for the aforesaid routes among others. The appellants received
notices under s. 5 of the U. P. Act requiring them to
file objections, if any, to the said scheme; and after
the objections were received, they were informed that
they would be heard by a Board on January 2, 1956.
On that date, the objections filed by the operators
other than those of the Agra region were heard and
the inquiry in regard to the Agra region was adjourned to January 7, 1956. It appears that the operators
of the Agra region did not appear on the 7th. The
notification issued under s. 8 of the U. P. Act was published in the U. P. Gazette on June 23, 1956, and on
June 25, 1956, the Secretary to the Regional Transport Authority, Agra, sent an order purported to have
been issued by the Transport Commissioner to the
operators of the Agra region prohibiting them from
plying their stage carriages on the routes and also informing them that their permits would be transferred
to other routes.
On July 7, 1956, a notice was sent to
'
)
(2) S.O.R. SUPREME COURT l~EPORTS
15
the other operators in similar terms.
The appellants
'959
filed Writ Petitions in the Allahabad High Court
Deep Chand
challenging the validity of the U. P. Act and the
v.
notifications issued thereunder.
The State of uttar
The facts in Civil Appeal No. 429 of 1958 are slightly Pradesh &
Others
different from those in other appeals and they may be
stated : The appellant's application for renewal of his
Subba Rao J.
permanent permit was rejected in 1953; but, on
appeal, the State Transport Authority Tribunal allowed his appeal OJl 1September 6, 1956, and directed his
permit to be renewed for three years beginning from
November 1, 1953. Pursuant to the order of the Tribunal, the appellant's permit was renewed with effect
from November 1, 1953, and it was made valid up to
October 31, 1956.
The scheme of nationalisation was
initiated and finally approved between the date of the
rejection of the appellant's application for renewal and
the date when his appeal was allowed. The appellant
applied on October 11, 1956, for the renewal of his
permit and he was informed by the Road Transport
Authority, Allahabad, that no action on his application, under reference was possible. The appellant's
contention, among others, was that the entire proceedings were taken behind his back and therefore the
scheme was not binding on him.
The appellants in thirteen appeals, namely, Civil
Appeals Nos. 387 to .389, 391 to 394, 396 to 399 and
401 and 429 were offered alternative routes. Though
they tentatively accepted the offer, presumably on the
ground that it was the lesser of the two evils, in fact
they obtained stay as an interim arrangement and
continued to operate on the old routes.
The appellants filed applications for permission to
urge new grounds in the appeals, which were not taken
before the High Court. The said grounds read :-·
(i) That by reason of the coming into operation of
the Motor Vehicles (Amendment) Act, No. 100of1956,
passed by Parliament and published in the Gazette of
India Extraordinary dated 31st December, 1956, the
impugned U. P. Act No. IX. of 1955 has become void.
(ii) That by reason of Article 254 of the Constitution of India, tlie said impugned Act No. IX. of 1955,
16
SUPREME COURT REPORTS [1959] Supp.
r959
beiug repugnant and inconsistent with the Central Act
Deep Chand
No. 100 of 1956, has become void since the coming
v.
into operation of the aforesaid Act No. 100 of 1956 ".
The State of uua, The judgment of the Allahabad High Court, which is
Pradesh &. Others the subject-matter of these appeals, was delivered on
-
December 19, 1956. The Amending Act of 1956 was
Suiba Rao }. published on December 31, 1956. It is therefore manifest that the appellants could not hfLve raised the
aforesaid grounds before the High Comt. ]'urther,
the grounds raise only a pure question of law not
dependent upon the elucidation of any further facts.
In the circumstances, we thought it to be a fit case for
allowing the appellants to raise the new grounds and
we accordingly gave them the permission.
Mr. M. K. Nambiar, appearing for some of the appellants, raised before us the following points:
(i)
The Motor Vehicles (Amendment) Act (100 of 1956)
passed by the Parliament is wholly repugnant to the
provisions of the U. P. Act and therefore the latter
became void under the provisions of Article 254( l) of
the Constitution; with the result that, at the present
time, there is no valid law whereunder the Government can prohibit the appellants from exercising their
fundamental right under the Constitution, namely, to
carry on their business of motor transport; (ii) the
scheme framed under the Act, being one made to operate in future and from day to sJay, is an instrument
within the meaning of s. 68B of the Amending Act.,
and therefore the provisions of the Amending Act
would prevail over those of the scheme, and after the
Amending Act came into force, it would have no
operative force; and (iii) even if the U. P. Act was
valid and continued to be in force in regard to the
scheme framed thereunder, it would offend the provisions of Art. 31 of the Constitution, as it was befor{I the
Constitution (Fourth Amendment)
Act, 1955, as,
though the State had acquired the appellant's interest
in a commercial undertaking, no compensation for the
said interest was given, as it should be under the said
Article.
The other learned Counsel, who followed
Mr. Nambiar, except Mr. Naunit Lal, adopted bis
argument. Mr. Na unit Lal, in addition to the argument
I
/
(2) S.C.R.
SUPREME COURT REPORTS
17
advanced by Mr. Nambiar in regard to the first
z959
point, based his contention on the proviso to Art.
254(2) of the Constitution rather than on Art. 254(1).
Deep Chand
He contended that by reason of the Amending Act, The Stat:· of uua
the U. P. Act was repealed in toto and, because of Pradesh & Other:
s. 68B of the Amending Act, the operation of the provisions of the General Clauses Act ,was excluded.
In
Subba Rao J.
addition, he contended that in Appeal No. 429 of 1958,
the scheme, in so far as it affected the appellant's route
was bad inasmuch as no notice was given to him before the scheme was approved.
We shall proceed to consider the argument advanced
by Mr. Nambiar in the order adopted by him; but
before doing so, it would be convenient to dispose of
the point raised by the learned Advocate General, for
it goes to the root of the matter, and if it is decided in
his favour, other questions do not fall for consideration. The question raised by the learned Advocate
General may be posed thus: whether the amendment
of the Constitution removing a constitutional limitation on a legislature to make a particular law has the
effect of validating the Act made by it when its power
was subject to that limitation. The present case
illustrates the problem presented by the said question.
The U. P. Legislature passed the U. P. Act on April 24,
1955, whereunder the State Government was authorized to frame a· scheme of nationalization of motor
transport. After following the procedure prescribed
therein, the State Government finally published the
scheme on June 23, 1956. The Constitution (Fourth
Amendment) Act, 1955, received the assent of the
President on April 27, 1955. The State Government
framed the scheme under the U. P. Act after the
passing of the Constitution (Fourth Amendment) Act,
1955. Under the said Amendment Act, cl. (2) of Art.
31 has been amended and cl. (2A) has been inserted.
The effect of the amendment is that unless the. law
provides for the transfer of ownership or right to
possession of any property to the State or to a Corporation owned or controlled by the State, it shall not be
deemed to provide for the compulsory acquisition or
3
18
SUPREME COURT REPORTS [1959] Supp.
'959
requisition of property within the meaning of cl. (2) of
h
d
that Article and therefore where there is no such transDeep vc an
fer, the condition imposed by cl. (2), viz., that the law
The State of Uttar should fix the amout of compensation or specify the
Pradesh & Othm principles on which and the manner in which the
compensation is to be determined and given, is not
Subba Rao J.
attracted. If the amendment applies to the U. P. Act,
as there is no transfer of property to the State, no question of compensation arises. On the other hand, if
the unamended Article governs the U. P. Act, the
question of compensation ;.vill be an important factor
in deciding its validity. The answer to the problem
so presented depends upon the legal effect of a constitutional limitation of the legislative power on the law
made in derogation of that limitation.
A distinction
is sought to he made by the learned Advocate General
between the law made in excess of the power conferred
on a legislature under the relevant List in the Seventh
Schedule and that made in violation of the provisions
of Part III of the Constitution.
The former, it is
suggested, goes to the root of the legislative power,
whereas the latter, it is said, operates as a check on
that power, with the result that the law so made is
unenforceable, and as soon as the check is removed,
the law . is resuscitated and becomes operative from
the date the check is removed by the constitutional
amendment.
Mr. Nambiar puts before us the following two propositions in support of his contention that the law so
made in either cpntingency is void ab initio : (i) the
paramountcy of fundamental rights over all legislative
powers in respect of all the Lists in the Seventh Schedule to the Constitution is secured by the double process of the prohibition laid by Art. 13(2) and the restl'ictions imposed by Art. 245, unlike the mere implied prohibition implicit in the division of power under
Art. 246; and (ii) where the provisions of an enactment
passed by a legislature after January 26, 1950, in
whole or in part-subject to the doctrine of severability-are in conflict with the provisions of Part III,
the statute, in whole or in part, is void ab initio. This
question was subject~d to judicial scrutiny by this
<
•
. '
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I
(2) S.C.R. SUPREME COURT REPORTS
19
Court, but before we consider the relevant authorities,
it would be convenient to tel?t its validity on first
principles.
1959
Deep Chand
v.
The relevant Articles of the Constitution read
follows:
as The State of U ttar
Pradesh & Others
Article 245:
"(1) Subject to the provisions of
this Constitution, Parliament may make laws for the
whole or any part oft.he territory of India, and the
Legislature of a State may make laws for the whole or
any part of the State."
Article 246: "(1) Notwithstanding anything in
clauses (2) and (3) Parliament has exclusive power to
make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution 'referred to as the "Union List").
(2) Notwithstanding anything in clause (3), Parliament and, subject to clause (1), the Legislature of
any State also, have power to make laws with respect
to any of the matters enumerated in List III in the
Seventh Schedule (in this Constitution referred to as
the "Concurrent List").
(3) Subject to clauses (1) and (2), the Legislature
of any State h.as exclusive power to make la\:vs for
such State or any part thereof with respect to any of
the matters enumerated in List II in the Seventh
Schedule (in this Constitution referred to as the " State
List").
(4) Parliament has power to mali.e laws with
respect to any matter for any part of the territory of
. India not included in a State notwithstanding that
such matter is a matter enumerated in the State
List."
Article 13: "(1) All laws in force in the territory
of India immediately before the commencement of this
Constitution, in so far as they are inconsistent with
the provisions of this Part, shall, to th.e extent of such
inconsistency, be void.
(2) The State shall not make any law which
takes away or abridges the rights conferred by this
Part and any law made in contravention of this
clause shall, to the extent of the contravention, be
void."
Subba Rao].
20
SUPREME COURT REPORTS [1959] Supp·
' 959
Article 31
(Before the Constitution (Fourth
Deep Chand
Amendment) Act, 1955):
v.
" (I) No person shall be deprived of his property
The Stale of Utta' save by authority Of law.
p,adesh "" Othm
(2) No property, movable or immovable, includSitbba Rao ] •
ing any interest in, or in any company owning, any
commercial or industrial undertaking, shall be taken
possession of or acquired for public purposes under
any law authorisiug the taking of such possession
or such acquisition, unless the law provides for compensation for the property taken possession of or
acquired and either fixes the amouut of the compensation, or specifies the principles on which, and the
manner in which, the compensation is to be determined and given".
<
The combined effect of the said provisions may be
stated thus : Parliament and the Legislatures of States
have power to make laws in respect of any of the matters enumerated in the relevant lists in the Seventh
Schedule and that power to make laws is subject to
the provisions of the Constitution including Art. 13,
i.e., the power is made subject to the limitations
imposed by Part III of the Constitution. The general
power to that extent is limited.
A Legislature, therefore, has no power to make any law in derogation of
the injunction contained in Art. 13. Article 13(1) deals
with laws in f9rce in the territory of India before the
commencement of the Constitution and such laws in
so far as they are inconsistent with the provisions of
Part III shall, to the extent of such inconsistency be
void. The clause, therefore, recognizes the validity of
the pre-Constitution laws and only declares that the
said laws would be void thereafter to the extent of
their inconsistency with Part III ; whereas cl. (2) of
that article imposes a prohibition on the State making
laws taking away or abridging the rights conferred by
I
Part III and declares that laws made in contravention
of this clause shall, to the extent of the contravention, •
be void.
There is a clear distinction between the two
clauses.
Under cl. (I), a pre.Constitution law subsists
except to the extent of its inconsistency with the provisions of Part III; whereas, no post-Constitution law
•
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21
I959
I
can be made contravening the provisions of Part III,
I and therefore the law, to that extent, though made, is
) a nullity from its inception. If this clear distinction
Deep vchana
is borne in mind, much of the cloud raised is dispelled. The State. of uttar
When cl. (2) of Art. 13 says in clear and unambiguous P.yadesh &
Others
terms that no State shall make any law which takes
away or abridges the rights conferred by Part III, it
Subba Rao f.
will not avail the State to contend either that the
clause does not embody a curtailment of the power to
legislate or that it imposes only a check but not a prohibition. A constitutional prohibition against a State
making certain laws cannot be whittled down by
analogy or by drawing inspiration from decisions on
the provisions of other Constitutions ; nor can we
appreciate the argument that the words "any law"
in the second line of Art. 13(2) posits the survival of
the law made in the teeth of such prohibition. It is
said that a law can come into existence only when it is
made and therefore any law made in contravention of
. that clause presupposes that the law made is not a
nullity. This argument may be subtle but is not
sound. The words" any law" in that clause can only
· mean an Act passed or made factually, notwithstanding the prohibition. The result of such contravention
is stated in that clause.
A plain reading of the clause
indicates, without any reasonable doubt, that the prohibition goes to the root of the matter and limits the
State's power to make law; the law made in spite of
the prohibition is a still-born law.
Cooley in his book " Constitutional Limitations"
(Eighth Edition, Volume I}, states at page 379:
"From what examination has been given to this
subject, it appears that whether a statute is constitutional or not is always a question of power; that is, a
question whether the legislature in the particulir case,
in respect to the subject-matter of the act, the manner
in which its object is to be accomplished, and the
mode of enacting it, has kept within the constitutional
limits and observed the constitutional conditions."
The Judicial Committee in The Queen v. Burak (1)
observed at page 193 as under :
(r) (1878) L.R. 5 I. A. 178.
•
22
SUPREME COURT REPORTS [1959] Supp.
r959
"The established courts of Justice, when a question
arises whether the prescribed limits have been exceed.
Deep Chand
v.
ed, must of necessity determine that question ; and
The State of uuar the only way in which they can properly do so, is by
Pradesh & Oth'Js looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by
Subba Rao f. which, negatively, they are restricted."
The Judicial Committee again in Attorney-General for
Ontario v. Attorney-General for Canada(') crisply stated
the legal position at page 583 as follows:-
" .............. .if the text is explicit the text. is conclusive, alike in what it directs and what" it forbids."
• The same idea is lucidly expressed by Mukherjea, J.,
as he then was, in K. G. Gajapati Narayan Deo v.
The State of Orissa ('). It is stated at page 11 as
follows:-
"If the Constitution of a State distributes the
legislative powers amongst different bodies, which
have to act within their respective spheres marked
out by specific legislative entries, or if there are limitations on the legislative authority in the shape of
fundamental rights, questions do arise as to whether
the legislature in a particular case has or has not, in
respect to the subject-matter of the statute or in the
method of enacting it, transgressed the limits of its
constitutional powers."
The learned Judge in the aforesaid passage clearly
accepts the doctrine that both the transgression of the
ambit of the entry or of the limitation provided by
the fundamental rights are equally transgressions of
the limits of the State's constitutional powers.
It is, therefore, manifest that in the construction of
the constitutional provisions dealing with the powers
of the legislature, a distinction cannot be made between• an affirmative provision and a negative provision; for, both are limitations on the power.
The
Constitution affirmatively confers a power on the legislature to make laws within the ambit of the relevant
entries in the lists and negatively prohibits it from
making laws infringing the fundamental rights. It
(1) (1912) A.C. 571.
(2) [1954] S.C.R. r.
'
)
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SUPREME COURT REPORTS -
23
•
goes further and makes the legislative power subject
'959
to the prohibition under Art. 13(2).
Apparent wide
d
h
f h
Deep Chand
power is, therefore, reduce
to t e extent o t e prov,
hibition.
The State of Uttar
If Arts. 245 and 13(2) define the ambit of the power Pradesh &
Others
to legislate, what is the effect of a law made in excess
of that power? The American Law gives a direct and
Subba ·Rao J.
definite answer to this question. Cooley in his " Constitutional Limitations" (Eighth Edition, Volume I) at
page 382 under the heading " Consequences if a statute
is void" says:-
" When a statute is adjudged to be unconstitutional, it is as if it had never been. . .............. And
what is true of an act void in toto iR true also as to
any part of an act which is found to be unconstitutional, and which, consequently, is to be regarded as
having never, at any time, been possessed of any legal
force."
In llottschaefer on Constitutional Law, much to the
same effect is stated at page 34:
"The legal status of a legislative provision in so
far as its application involves violation of constitutional provisions, must however be determined in the
light of the theory on which Courts ignore it as law in
the decision of cases in which its application produces.
unconstitutional results. That theory implies that the
legislative provisions never had legal force as applied to
cases within that clause."
In "Willis on Constitutional Law", at page 89:
"A judicial declaration of the unconstitutionality
of a statute neither annuls nor repeals the statute but
has the effect of ignoring or disregarding it so far as
the deter~ination of the rights of private parties is
concerned. The Courts generally say that the effect
of an unconstitutional statute is nothing. It is as
though it had never been passed ...................... "
"Willoughby on Constitution of the United States'',
Second Edition, Volume I, page 10:
"The Court does not annul or repeal the statute
if it finds it in conflict with the Constitution. It simply
refuses to recognize it, and determines the rights of
24
SUPREME COURT REPORTS [1959] Supp.
•
r959
the parties just as if such statute had no application .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Deep Chand
The validity of a statute is to be tested by the
The Stat;· of Uitar constitutional power of a legislature at the time of its
Pradesh c;. Others enactment by that legislature, and, if thus tested, it is
beyond the legislative power, it is not rendered valid,
Subba Rao J.
without re-enactment, if- later, by constitutional
amendment, the necessary legislative power is granted.
' An after-acquired power cannot, ex proprio vigore,
validate a statute void when enacted '.
"However, it has been held that where an act is
within the general legislative power of the enacting
body, but is rendered unconstitutional by reason of
some adventitious circumstance, as, for example, when
a State legislature is prevented from regulating a
matter by reason of the fact that the Federal Congress
has already legislated upon that matter, or by reason
of its silence is to be construed as indicating that
there should be no regulation, the act does not need
to be re-enacted in order to be.enforced, if this cause
of its unconstitutionality is removed. "
For the former propositi01i, the decision in Newberry
v. United States (1) and for the latter proposition the
decision in John M. Wilkerson v. Charles A. Rahrer (')
are cited. In N ewberry's Gase the validity of the
Federal Corrupt Practices Act of 1910, as amended by
the Act of 1911, fixing the maximum sum which a
candidate might spend to procure his nomination at a
primary election or convention was challenged. At the
time of the enactment, the Congress had no power to
make that law, but subsequent.ly, by adoption of the
17th Amendment, it acquired the said power. The
question was whether an after-acquired power could
validate a statute which was void when enacted. Mr.
Justice McReynolds delivering the opinion of the court
states the principle at page 920 :
"Moreover, the criminal statute now relied upon
ante-dates the 17th Amendment, and must be tested
by powers possessed at time of its enactment. An
(1) (1921) 256 U.S. 232; 65 L. Ed. 913.
(2) (1891) 140 U.S. 545; 35 L. Ed. 572.
'
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SUPREME COURT REPORTS
25
after-acquired power cannot, ex proprio vigore,:valiz959
date a statute void when enacted."
Deep Chand
In Wilkerson's Gase (1) the facts were thatin June 1890,
v.
the petitioner, a citizen of the United States and an The State of Utta•
agent of Maynard, Hopkins & Co., received from his Pradesh & Others
Principal intoxicating liquor in packages. The pack-
-
Subba Rao].
ages were shipped from the State of Missouri to various
points in the State of Kansas and other States.