13 October 1954
Supreme Court


Case number: Appeal (civil) 182 of 1954






DATE OF JUDGMENT: 13/10/1954


CITATION:  1954 AIR  728            1955 SCR  707  CITATOR INFO :  RF         1954 SC 743  (2)  R          1955 SC 781  (7,8,10)  E&D        1956 SC 298  (15,16)  R          1958 SC 578  (186)  RF         1958 SC 731  (20,29)  R          1959 SC 308  (6,7)  D          1959 SC 648  (22,23,38)  R          1959 SC 694  (5)  R          1960 SC 430  (15)  R          1960 SC1080  (23)  RF         1961 SC  14  (6)  RF         1961 SC  82  (13)  R          1961 SC 232  (58)  D          1961 SC 365  (15,21)  RF         1962 SC1371  (74)  RF         1962 SC1796  (31)  E          1963 SC  90  (16)  R          1963 SC1019  (13,16,17,22)  D          1963 SC1047  (25)  R          1964 SC 925  (35,67)  D          1967 SC 295  (72)  RF         1967 SC 856  (9)  RF         1967 SC1643  (227)  R          1970 SC 129  (10)  R          1970 SC 564  (69)  R          1971 SC1594  (9)  R          1971 SC1737  (48)  R          1972 SC 425  (11,17,20)  D          1972 SC2205  (26)  MV         1973 SC  87  (30,53,67)  RF         1973 SC 974  (7,8)  D          1974 SC1940  (4,46)  RF         1978 SC1457  (61)  E          1980 SC 898  (64)  R          1981 SC 873  (12,33)  R          1982 SC 902  (19)  MV         1982 SC1325  (31,32)  R          1983 SC1115  (13,18,20,23,25)  RF         1984 SC 953  (1)  RF         1986 SC 319  (3)  R          1989 SC1988  (31)  RF         1991 SC1094  (10)



R          1992 SC 443  (10)

ACT:         Constitution  of India, Arts. 14, 19(1) (g),  19(6), 31(2),  301--Highway-Its origin and use-Citizen’s rights  in respect  of  highwas-Vis-a-vis the  State-State’s  right  to control highway-Limit of such control-Constitution of  India (First Amendment) Act, 1951 -U.  P. Road Transport Act, 1951 (U.    P.  Act  II  of  1951)--  Whether  ultra  vires   the Constitution--Subsequent  amendment of Constitution  if  can validate a prior unconstitutional Act. 708

HEADNOTE:      A  highway  has  its origin,  apart  from  statute,  in dedication  either express or implied, by the owner of  land of  a  right  of  passage over it  to  the  public  and  the acceptance thereof by the public.  Dedication is presumed by long  and  uninterrupted user of a way by the  public.   The presumption  in such cases is so strong as to dispense  with all  enquiry  into the actual ownership of the land  or  the intention of the owner about its user.       All  public streets and roads vest in the  State,  but the  State holds them as trustees on behalf of  the  public. The  members of the public are entitled as beneficiaries  to use them as a matter of right and this right is limited only by  the similar rights possessed by every other  citizen  to use  the pathways.  The State as trustees on behalf  of  the public  is  entitled to impose all such limitations  on  the character  and  extent of the user as may be  requisite  for protecting  the rights of the public generally; but  subject to  such limitations the the right of a citizen to carry  on business in transport vehicles on public pathways cannot  be denied  to  him  on  the ground  that  the  State  owns  the highways.     G.    S.  S. Motor Service v. State of Madras ([19521  2 M. L. J. 894)  referred to with approval.       Within  the  limits imposed by State  regulations  any member  of  the public can ply motor vehicles  on  a  public road.   To that extent he can also carry on the business  of transporting passengers with the aid of vehicles.  It is  to this carrying on of the trade or business that the guarantee in   Art.  19(1)  (g)  is  attracted  and  a   citizen   can legitimately  complain  if  any legislation  takes  away  or curtails  that  right  any more than  is  permissible  under clause (6) of that article.      Article 19(6) as the result of the Constitution  (First Amendment)  Act,  1951, enables the State to  carry  on  any trade  or business either by itself or through  corporations owned or controlled by the State to the exclusion of private citizens  wholly or in part.  This provision of Art.  19(6), which was introduced by the amendment of the Constitution in 1951,  was  not in existence when the U. P.  Road  Transport Act, 1951 (U.  P. Act II of 1951), was passed and  therefore the  validity  of the impugned Act is not to be  decided  by applying the provisions of the now clause.      Amendment  of the Constitution which came later  cannot be invoked to validate an earlier legislation which must  be regarded  as unconstitutional when it was passed, because  a statute  void for unconstitutionality is dead and cannot  be vitalised  by  a subsequent amendment  of  the  Constitution removing the Constitutional objection but must be reenacted.



   Although the normal use of the word "restriction"  seems to  be  in the sense of limitation and  not  extinction  but (without expressing any final opinion on the matter) if  the word  "  I restriction" does not include  total  prohibition then  the impugned Act cannot be justified under Art.  19(6) of the Constitution and it would 709 be void unless supported by Art. 31.  If however the word Is restriction" in Art. 19(6) be taken in certain circumstances to  include prohibition as well then the prohibition of  the right  of all private citizens to carry on the  business  of motor  transport on public roads within the State  of  Uttar Pradesh  as  laid  down  by  the  impugned  Act,  cannot  be justified   as  reasonable  restrictions  imposed   in   the interests of the general public.       Whether  the restrictions are reasonable or not  would depend to a large extent on the nature of the trade and  the conditions  prevalent in it.  There is nothing wrong in  the nature  of  the motor transport trade in  the  present  case which is perfectly innocuous.      The  U.  P.  Road Transport Act,  (II  of  1951)  which violates  the  fundamental rights of  the  private  citizens guaranteed  under Art. 19(1) (g) of the Constitution and  is not  protected by clause (6) of Art. 19 as it stood  at  the time  of enactment must be held to be void under Art.  13(2) of the Constitution.      The effect of the prohibition of the trade or  business of  the  citizens  by the impugned  legislation  amounts  to deprivation  of their property or interest in  a  commercial undertaking  within  the  meaning  of  Art.  31(2)  of   the Constitution  and therefore U. P. Road Transport Act,  1951, offends against the provision of that clause inasmuch as  no provision for compensation has been made in the Act.     The  impugned  Act  is not void on the  ground  that  it offends against the equal protection rule embodied- in  Art. 14 of the Constitution.      The contention whether the impugned Act conflicts  with the  guarantee  of freedom of  inter-State  and  intra-state trade, commerce and intercourse provided for by Art. 301  of the  Constitution  discussed and the points  that  could  be raised and the possible views that could be taken  indicated without expressing any final opinion thereupon. Cooverjee  v. The Excise Commissioner, etc.  ([1954]  S.C.R. 873) distinguished.     West  Bengal  v. Subodh Go pal Bose and  Others  ([1954] S.C.R. 587) and Dwarkadas Shrinivas v. The Sholapur Spinning and Weaving Co. Ltd. ([1954] S.C.R. 674) followed. Packard  v.  Banton (68 L.E. 596; 264 U.S.  140),  Frost  v. Railroad  Commission (70 L.E. 1101), Stephenson  v.  Binford (77  L.E. 288), Motilal v. Uttar Pradesh Government  (I.L.R. 1951 All. 257), Municipal Corporation of the City of Toronto v.  Virgo  ([1896]  A.C. 88), A. K.  Gopalan  v.  The  State ([1950]  S.C.R. 88), Lokanath Misra v. The State  of  Orissa (A.I.R.  1952  Orissa  42), Commonwealth  of  Australia  and Others  v. Bank of New South Wales and Others  ([1950]  A.C. 235) and P. and 0. Steam Navigation Co. v. The Secretary  of State (1861 5 B.H.C.R. Appendix 1) referred to. 91 710

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 182 and 183 of 1954.



    Appeals  under  article 132(1) of the  Constitution  of India from the Judgment and Order, dated the 17th  November, 1953, of the High Court of Judicature at Allahabad in  Civil Miscellaneous  Writ  No. 414 of 1953, connected  with  Civil Miscellaneous Writs Nos. 537, 579 to 582, 587 to 595, 597 to 603,  617 to 620, 622, 623, 626 to 629, 633, 634, 638,  639, 651 to 654, 677 all of 1952 and 339 to 342, 351 to 355, 363, 372 to 374, 397, 416 to 464, 504 and 505 of 1953.  G. S. Pathak (V.  D. Bhargava and Naunit Lal, with him) for the appellants.    K.     L. Misra, Advocate-General for the State of  U.P., and  Jagdish  Swarup (J.  K. Srivastva and C. P.  Lal,  with them) for the respondents. 1954.  October 13.  The Judgment of the Court was  delivered by    MUKHERJEA   J.-The  appellant  in  these  two   analogous appeals,  along with many others, have been carrying on  the business of plying motor vehicles, as ,stage carriages ’  on hire, on the Bulandshabr-Delhi route from a number of  years past.   The running of these vehicles has been regulated  so long by the Motor Vehicles Act of 1939 which provides, inter alia, for granting of driving licences, the registration  of vehicles  and  exercising control  over  transport  vehicles through  permits granted by Regional Transport  Authorities. Section  42(3) of the Act exempts transport vehicles,  owned by or on behalf of the Central Government or the  Provincial Government  from the necessity of obtaining  permits  unless the vehicles were used in connection Path the business of an Indian State Railway.  It appears, that some time after 1947 the Government of U. P. conceived the idea of running  their own  buses on the public thoroughfares.  They first  started running buses only as competitors with the private operators but later on they decided to exclude all private bus  owners from  the field and establish a complete State  monopoly  in respect  to  the road transport business.   They  sought  to achieve this object by 711 calling  in  aid the provisions of the  Motor  Vehicles  Act itself.  Under section 42(3) of the Act as mentioned  above, the  Government  had  not to obtain permits  for  their  own vehicles  and  they could run any number of  buses  as  they liked without the necessity of taking out permits for  them. The  Transport  Authorities, in furtherance of  -this  State policy,  began  cancelling  the permits  already  issued  to private  operators and refusing permits to people who  would otherwise  have been entitled to them.  Upon this, a  number of private bus owners filed petitions in the Allahabad  High Court  under  article 226 of the  Constitution  praying  for appropriate  relief,  by  way of  writs,  against  what  was described as the illegal use of the provisions of the  Motor Vehicles  Act  -by the Government of U. P.  These  petitions were heard by a Full Bench of five Judges and four judgments were  delivered  dealing with various  questions  that  were raised  by the parties.  A majority of the judges  expressed the opinion that the State, purporting to act under  section 42(3)  of  the Motor Vehicles Act, could  not  ’discriminate against other persons in their own favour and that the  sub- section, in so far as it purports to exempt State  Transport buses  from the obligation to obtain permits for their  use, conflicts  with  article 14 of the  Constitution.   All  the judges  concurred  in  holding that  nationalisation  of  an industry was not possible by a mere executive order  without appropriate legislation and such legislation would  probably have   to   be  justified  under  article   19(6)   of   the Constitution.   As a result of this decision  the  Transport



Authorities were directed to deal with the applications  for permits,  made  by  the  various  private  bus  owners,   in accordance  with the provisions of the Motor  Vehicles  Act, without  in  any way being influenced by  the  consideration that  the State Government wanted to run buses of their  own on certain routes.     In  view  of  this  pronouncement  of  law,  the   State Government,  which  wanted to have the  exclusive  right  to operate Road Transport Services within its territory, sought the  assistance  of  the  Legislature and  the  U.  P.  Road Transport Act (Act II of 1951) was passed and 712 became  law on and from the 10th of February, 1951.   It  is the  constitutional validity of this enactment which is  the subject-matter of contest in these present proceedings.    The  preamble  to  the Road  Transport  Act  (hereinafter called "The Act") says:     "Whereas it is expedient in the interest of the  general public  and for the promotion of the suitable and  efficient road  transport  to  provide -for  a  State  Road  Transport Services in Uttar Pradesh, it is enacted as follows."    Section  2  gives  definitions of  certain  terms,  while section  3, which is the most material section in  the  Act, embodies  virtually  its whole purpose.   It  provides  that where   the  State  Government  is  satisfied  that  it   is necessary,  in the interest of general public and  for  sub- serving  the common good, so to direct, it may declare  that the  Road Transport Services in general, or  any  particular class of such service on any route or portion thereof, shall be ’run and operated by the State Government exclusively  or by  the  State  Government in conjunction  with  railway  or partly  by  the  State Government and partly  by  others  in accordance  with  the  provisions of this  Act.   Section  4 provides  for publication of a scheme framed  in  accordance with the above declaration and objections to such scheme can be  made  by interested persons in the manner laid  down  in section  5.  As  soon as the scheme  is  finalised,  certain consequences follow which are detailed in section 7. So long as the scheme continues in force, the State Government shall have the exclusive right to operate Road Transport Services, or  if  the scheme so provides, a certain  fixed  number  of transport  vehicles belonging to others can also be  run  on those  roads.  The State Government shall be  authorised  in all  such  cases  to direct the dispensation  of  the  State Transport vehicles from the necessity of taking out permits, or to cancel, alter or modify any existing permits or to add any  fresh  condition  to  any  permit  in  respect  of  any transport  vehicle.   The  remaining  portion  of  the   Act purports to lay down how the provisions of the Act are to be worked out and implemented.  Sections 8 and 9                             713 provide  respectively  for the appointment  of  a  Transport Commission  and Advisory Committees.  Under section  10  the State Government may delegate its powers under the Act to an officer or authority subordinate to it. Section 12 makes  it an offence for any person to drive a public service  vehicle or  allow  such vehicle to be used in contravention  of  the provisions of section 7. It is not necessary to refer to the provisions  of  the  remaining  sections  as  they  are  not material for our present purpose.     By a notification dated the 25th of March, 1953, the  U. P. Government published a declaration in terms of section  3 of the Act, to the effect, that the State carriage services, among  others, on the Bulandshar Delhi route, shall  be  run



and operated exclusively by the State Government.  A further notification  issued on the 7th of April following  set  out what purported to be a scheme for the operation of the State carriage services on these routes.  Thereupon the two appel- lants as well as several other private bus owners  numbering 106  in  all,  who plied transport buses  on  these  routes, presented  petitions under article 226 of  the  Constitution before the High Court at Allahabad praying for writs, in the nature  of mandamus, directing the U. P. Government and  the State  Transport  Authorities  not  to  interfere  with  the operation  of the stage carriages of the petitioners and  to refrain  from  operating the State  Road  Transport  Service except  in  accordance  with the  provisions  of  the  Motor Vehicles  Act.  The constitutional validity of the  Act  was challenged on a number of grounds, the principal contentions being:     (1)that the Act was discriminatory in its character  and contravened   the   provisions   of  article   14   of   the Constitution;    (2)that it conflicted with the fundamental rights of  the petitioners   guaranteed  under  article  19(1)(g)  of   the Constitution; and    (3)that  it  was an invalid piece of  legislation  as  it purported  to acquire the interest of the petitioners  in  a commercial  undertaking  without making  any  provision  for compensation as is required under article 31(2) 714 of  the  Constitution.  It was further argued that  the  Act violated the guarantee of freedom of inter-State and  intra- state trade embodied in article 301 of the Constitution.      All these writ petitions were heard by a Division Bench of the High Court consisting of Mukherji and Chaturvedi  JJ. By  two separate but concurring judgments dated the 17th  of November,   1953,  the  learned  Judges  repelled  all   the contentions  of  the  petitioners  and  dismissed  the  writ petitions.   It  is  against this decision  that  these  two appeals  have  come  up to this Court  on  the  strength  of certificates granted by the High Court and Mr. Gopal  Swarup Pathak  appearing in support of the appeals  has  reiterated practically  all the grounds which were urged on  behalf  of his  clients  in  the Court below.  We will  take  up  these points  in proper order and it will be convenient  first  of all to address ourselves to the two allied questions,  viz., whether  the  appellants could claim any  fundamental  right under article 19(1)(g) of the Constitution which can be said to  have  been  violated by the  impugned  legislation,  and whether  the Act has deprived them of any  ’property’  which would   attract   the  operation  of  article  31   of   the Constitution?     Mr.  Pathak  argues  that  a  right  to  carry  on   any occupation, trade or business is guaranteed to all  citizens by article 19(1)(g) of the Constitution.  The appellants  in the  present cases were carrying on the business  of  plying buses  on  hire on a public highway until now  and  the  Act which  prevents  them from pursuing that trade  or  business conflicts  therefore with the fundamental  right  guaranteed under article 19(1)(g) of the Constitution.  It is said also that  this  beneficial  interest of the  appellants  in  the commercial  undertaking is ’property’ within the meaning  of article  31(2) of the Constitution and as the Act  does  not conform to the requirements of that article, it must be held to be void.     Mr.  Pathak  put forward another and  a  somewhat  novel argument  that the right of the appellants to use  a  public highway  for  purposes  of  trade is in  the  nature  of  an



easement and as such can be reckoned as property 715 in  law;  consequently  there  has  been  a  deprivation  of property  by  the impugned legislation in this  sense  also. This  contention  seems  to us to be untenable  and  it  was rightly abandoned by the learned counsel.     The  Advocate-General appearing for the State of ’U.  P. did  not  and could not dispute that a right to  pursue  any trade, business or occupation of one’s choice is  guaranteed by  the  Constitution.  He says however that this  does  not mean  that  a  citizen can carry on his  trade  or  business anywhere  he likes and such right is also guaranteed by  the Constitution.   He  must  have  a  legal  right  to  use   a particular  place  for purposes of his  trade  or  business, before  he  can  resist  any encroachment  upon  it  on  the strength  of the constitutional guarantee.  His argument  in substance is, that the bus owners, as members of the public, have no legal right to ply buses on hire on any public road. The  only right which a member of the public can  assert  in respect  of a highway is the right of passing and  repassing over it.  The State in which all public ways vest under  the law  has the sole right to determine whether it would  allow any  citizen to carry on a trade or business upon  a  public highway  and  if  so, to what extent.  The  citizen  has  no inherent  right  in  this  respect  apart  from  any   State sanction.   The position, therefore is, that the  rights  of the appellants, as indeed those of the other bus owners, are created   entirely  by  State  legislation  and   by   State legislation they could be deprived of the same.  There is no question   of  any  conflict  with  the  fundamental   right guaranteed  under  article 19(1)(g) of the  Constitution  in such cases.  The argument requires careful consideration.      It is not disputed that the Bulandshahr-Delhi route  is a  part of the Grand Trunk Road which is a  public  highway. According  to English law, which has been applied all  along in  India, a highway has its origin, apart from statute,  in dedication, either express or implied, by the owner of  land of  a  right  of  passage over it  to  the  public  and  the acceptance  of that right by the public (1).  In  the  large majority of cases this dedication is presumed from long  and uninterrupted (1)  Vide Pratt & Mackenzie on Law of Highways, 19th edn. p. 13. 716 user  of  a way by the public, and the presumption  in  such cases is so strong as to dispense with all enquiry into  the actual intention of the owner of the soil and it is not even material to enquire who the owner was ().  The fact that the members of the public have a right of passing and  repassing over a highway does not mean however that all highways could be  legitimately  used as foot passages only  and  that  any other   user  is  possible  only  with  the  permission   or sufferance of the State.  It is from the nature of the  user that  the extent of the right of passage has to be  inferred and  the settled principle is that the right extends to  all forms  of traffic which have been usual and  accustomed  and also  to  all which are reasonably  similar  and  incidental thereto ( 2).  The law has thus been stated in Halsbury’s Laws of England(1):      "Where a highway originates in an inferred  dedication, it  is  a question of fact what kind of traffic  it  was  so dedicated for, having regard to the character of the way and the  nature  of the user prior to the date  at  which  -they infer dedication; and a right of passage once acquired  will extend to more modern forms of traffic reasonably similar to



those  for  which the highway was originally  dedicated,  so long as they do not impose a substantially greater burden on the owner of the soil."     There can be no dispute that the Grand Trunk Road which, as  a public highway, has been in existence since  the  15th Century  A.  D.  has been used for all  sorts  of  vehicular traffic  that  were  in vogue  at  different  times.   Motor vehicles  were certainly not known when the road  came  into existence  but the use of motor vehicles in modern times  as means  of  locomotion  and  transport  could  not,  on   the principle stated above, amount to an unwarrantable extension of  the accustomed user to which the highway  is  subjected. If  there is any danger to the road by reason of such  user, or  if such user by one interferes with the user by  others, it  is  up  to the State to regulate the  motor  traffic  or reduce  the number or weigh of vehicles on the road  in  any way it (i)  Ibid page 28. (2)  lbid page 35. (3) Vol. i 6, p. 185.                   717 likes, and to that no objection can possibly be taken.   But the right of the public to use motor vehicles on the  public road cannot, in any sense, be regarded as a right created by the  Motor Vehicles Act.  The right exists anterior  to  any legislation on this subject as an incident of public  rights over  a highway.  The State only controls and  regulates  it for  the purpose of ensuring safety, peace, health and  good morals of the public.  Once the position is accepted that  a member  of the public is entitled to ply motor  vehicles  on the public road as an incident of his right of passage  over a  highway,  the question is really  immaterial  whether  he plies  a vehicle for pleasure or pastime or for the  purpose of  trade and business.  The nature of the right in  respect to  the  highway is not in any way affected thereby  and  we cannot agree with the learned AdvocateGeneral that the  user of  a public road for purposes of trade is an  extraordinary or  special  use of the highway which can be  acquired  only under special sanction from the State.     The   learned   Advocate-General  in  support   of   his contention  has referred us to a few American cases  on  the point.   In the case of Packard v. Banton(1), Sutherland  J. observed as follows:     " The streets belong to the public and are primarily for the  use of the public in the ordinary way.  Their  use  for purposes of gain is special and extraordinary and  generally at least may be prohibited or conditioned as the Legislature deems proper.  "      This  decision  was  approved  in  Frost  v.   Railroad Commission(1), and again in Stephenson v. Binford(3),  where Sutherland J. practically reiterated his observations in the previous case as follows:     " It is a well established law that the highways of  the State are public property; that their primary and  preferred use is for private purposes; and that their use for purposes of  gain  is special and extraordinary  which  generally  at least  the Legislature may prohibit or condition as it  sees fit. (1)68 L.E. 596; 264 U.S 140. (3) 77 L.E. 288, 294 (2) 7o L.E. 1101 1108. (4) I.L.R. 1951 All. 257. 92 718       We  do not think that this is the law of  India  under our Constitution.  The cases referred to above were  noticed by  the Allahabad High Court in the Full Bench  decision  of



Motilal  v.  Uttar  Pradesh Government(1), and  two  of  the learned  Judges constituting the Full Bench expressed  their opinion that this ’doctrine of exceptional user’ might  have been evolved by the American Courts in the same way as  they evolved the ’doctrine of police powers.’ They both held that this American rule did not embody the English or the  Indian law on the subject.     This identical point was investigated with  considerable thoroughness  in a recent decision of the Madras High  Court in C. S. S. Motor Service v. State of Madras(2), and it  was pointed  out  by  Venkatarama Ayyar  J.  who  delivered  the judgment  of  the  Court,  that  the  rule  of  special   or extraordinary  use of highways in America had its  roots  in the  doctrine  of ’franchise’, which is still  a  recognised institution in that country.  The doctrine of ’franchise’ or ’privilege’  has  its origin in English Common Law  and  was bound  up  with  the old prerogative  of  the  Crown.   This doctrine continued to live in the American legal world as  a survival of the pre-independence days, though in an  altered form.   The  place  of the royal grants  under  the  English Common  Law was taken by the legislative grants  in  America and the grant of special rights by legislation to particular individuals or companies is regarded there as a  ’franchise’ or  ’Privilege’ differing from the ordinary liberties  of  a citizen.   The  carrying  on of transport  buses  by  common carriers on the public road in America is a ’franchise’  and not  a  common  law right, which could  be  claimed  by  all citizens and a distinction is made, as the cases cited above will show, between contract carriers who carry passengers or goods  under particular contracts and common carriers  whose business is affected with public interest.  Over the  latter the  State claims and exercises a plenary power of  control. Ayyar J. has, in our opinion, rightly pointed out that  this doctrine  of ’franchise’ has no place in  our  Constitution. Under the Indian Constitution the contract (i) I.L.R. 1951 All. 257. (2) (1952) 2 M.L.J. 894. 719 carries as well as the common carriers would occupy the same position so far as the guaranteed right under article  19(1) (g)  is  concerned and both are liable to be  controlled  by appropriate  regulations under clause (6) of  that  article. The law on the point, as it stands at present, has been thus summed up by the learned Judge :       "The  true position then is, that all  public  streets and  roads vest in the State, but that the State holds  them as  trustees  on behalf of the public.  The members  of  the public are entitled as beneficiaries to use them as a matter of  right  and  this right is limited only  by  the  similar rights possessed by every other citizen to use the pathways. The State as trustees on behalf of the public is entitled to impose  all such limitations on the character and extent  of the  user as may be requisite for protecting the  rights  of the   public  generally  ;.........  but  subject  to   such limitations  the right of a citizen to carry on business  in transport  vehicles on public pathways cannot be  denied  to him on the ground that the State owns the highways.  "       We  are in entire agreement with the statement of  law made in these passages.  Within the limits imposed by  State regulations any member of the public can ply motor  vehicles on  a public road.  To that extent he can also carry on  the business  of  transporting passengers with the  aid  of  the vehicles.   It  is  to  this carrying on  of  the  trade  or business  that  the  guarantee  in  article  19(1)  (g)   is attracted  and  a citizen can legitimately complain  if  any



legislation takes away or curtails that right any more  than is permissible under clause (6) of that article.     The  legislation  in the present case has  excluded  all private  bus  owners from the field of  transport  business. Prima facie it is an infraction of the provision of  article 19(1)  (g)  of  the Constitution and the  question  for  our consideration  therefore  is whether this  invasion  by  the Legislature of the fundamental right can be justified  under the provision of clause (6) of article 19 on the ground that it  imposes reasonable restrictions on the exercise  of  the right in the interests of the general public. 720      Article  19(6) of the Constitution, as it stands  after the  amendment of 1951, makes a three-fold provision by  way of  exception  to or limitation upon clause (1) (g)  of  the article.  In the first place it empowers the State to impose reasonable restrictions upon the freedom of trade, business, occupation  or  profession in the interests of  the  general public.   In  the  second place it  empowers  the  State  to prescribe  the  professional  and  technical  qualifications necessary  for practicing any profession or carrying on  any occupation,  trade  or business.  Thirdly,-and this  is  the result of the Constitution (First) Amendment Act of  1951-it enables  the State to carry on any trade or business  either by  itself or through a corporation owned or  controlled  by the State to the exclusion of private citizens wholly or  in part.  It is not disputed that the third provision which was introduced by the amendment of the Constitution in 1951  was not  in existence when the impugned Act was passed  and  the High Court rightly held that the validity of the Act is  not to  be decided by applying the provision of the new  clause. The  learned Judges held however that quite apart  from  the new provision, the creation of a State monopoly in regard to transport service, as has been done under the Act, could  be justified  as reasonable restrictions upon  the  fundamental right  enunciated in article 19(1) (g) of  the  Constitution imposed  in  the  interests  of  the  general  public.   The question  is,  whether the view taken by the High  Court  is right?      To  answer this question three things will have  to  be considered.    The   first  is,   whether   the   expression "restriction" as used in article 19(6) and for the matter of that  in  the other sub-clauses of the  article,  means  and includes total deprivation as well?  If the answer is in the affirmative, then only the other two questions would  arise, namely,  whether these restrictions are reasonable and  have been  imposed  in  the interests of  the  general  public  ? According to the meaning given in the Oxford Dictionary, the word "restriction" con. notes a ’limitation’ imposed upon  a person  or  a  thing, a ’condition or  regulation’  of  this nature,  though  the  use  of  the  word  in  the  sense  of suppression is not 721 altogether unknown.  In the case of Municipal Corporation of the City of Toronto v. Virgo(1), Lord Davey while discussing a  statutory power conferred on a Municipal Council to  make bye-laws  for  regulating  and governing a  trade  made  the following observation:     " No doubt the regulation and governance of a trade  may involve the imposition of restrictions on its exercise...... where  such  restrictions are in the opinion of  the  public authority  necessary  to  prevent  a  nuisance  or  for  the maintenance of order.  But their Lordships think that  there is a marked distinction to be drawn between the  prohibition or prevention of a trade and the regulation or governance of



it, and indeed a power to regulate and govern seems to imply the continued existence of that which is to be regulated  or governed."    This   line  of  reasoning  receives  support  from   the observations  made  by some of the learned  Judges  of  this Court  in  their respective judgments in the case of  A.  K. Gopalan v. The State (2).  The question for consideration in that case was the constitutional validity of the  Preventive Detention  Act  and  one of the contentions  raised  by  the learned counsel for the appellant in attacking the  validity of  the legislation was, that it invaded the right  of  free movement   guaranteed   under  article   19(1)(d)   of   the Constitution  ; and as the restrictions imposed by it  could not  be  regarded  as  reasonable  restrictions  within  the meaning  of clause (5) of the article, the enactment  should be  held  to  be void.  This argument was  repelled  by  the majority  of the Judges inter alia on the ground that a  law which authorises the deprivation of personal liberty did not fall  within the purview of article 19 and its validity  was not to be judge d by the criteria indicated in that  article but  depended  on its compliance with  the  requirements  of articles  21  and 22 of the  Constitution.   The  expression Personal  liberty" as used in article 21, it was  said,  was sufficiently   comprehensive  to  include   the   particular freedoms  enumerated  in article 19(1) and  its  deprivation therefore  in  accordance with the provision of  article  21 would  result in automatic extinction of the other  freedoms also.  In this connection reference was made to (1) [1896] A.C. 88,93. (2) [1950] S.C.R. 88. 722 the  several sub-clauses of article 19 and Patanjali  Sastri J. expressed his views in the following words:      "The use of the word ’restrictions’ in the various sub- clauses  seems  to imply, in the context,  that  the  rights guaranteed  by  the  Article  are  still  capable  of  being exercised,  and to exclude the idea of incarceration  though the  words ’restriction and deprivation’ are sometimes  used as inter- changeable terms, as restriction may reach a point where  it may well amount to deprivation.  Read as  a  whole and  viewed  in its setting among the  group  of  provisions relating to ’right to freedom’, Article 19 seems to my  mind to  presuppose  that the citizen to whom the  possession  of these  fundamental rights is secured retains the  substratum of  personal freedom on which alone the enjoyment  of  these rights necessarily rests."     The point for consideration in that case was undoubtedly different  from the one that has arisen in the present  case and the question whether the restrictions enumerated in  the several sub-clauses of article’ 19 could go to the length of total deprivation of these liberties was neither raised  nor decided  in that case.  But a distinction was drawn  by  the majority  of learned Judges between negation or  deprivation of  a  right and a restriction upon it and although  it  was said.  that  restriction may reach a point  where  it  might amount to deprivation, yet restrictions would normally  pre- suppose  the  continued existence-no matter even in  a  very thin  and  attenuated  form-of  the  thing  upon  which  the restrictions were imposed.  Kania C.J. in his judgment (vide page 106) expressly said:     Therefore  Article 19(5) cannot apply to  a  substantive law depriving a citizen of personal liberty.  I am unable to accept  the contention that the word ’deprivation’  includes within  its  scope ’restriction’ when  interpreting  Article 21."



   Against  this view it may be urged that the use  of  the words  ’deprivation" and "restrictions"  as  interchangeable expressions  is not altogether unusual in ordinary  language and  the  nature and extent of restrictions  might  in  some cases  amount to a negation of the right.  The Orissa,  High Court in the care of Lokanath                             723 Misra v. The State of Orissa (1) accepted this view and made a  distinction between "regulation" and  "restriction".   In the  opinion of the learned Judges the observations of  Lord Davey  in  Municipal Corporation of the City of  Toronto  v. Virgo  (supra) referred to above could be  distinguished  on the ground that the expression used in that article was  not ’restriction’  but regulation’ and ’governing’.  It is  said that  the  framers  of the Constitution were  aware  of  the distinction between the power to ’regulate’ and the power to ’restrict’  and  this would be apparent from a  scrutiny  of sub-clause   ’a)  of  clause  (2)  of  article  25  of   the Constitution where the words "regulating" and  "restricting" occur in juxtaposition indicating thereby that they were not intended to convey the same meaning.      On  behalf  of the respondents much reliance  has  also been placed on a decision of this Court in Cooverjee v.  The Excise   COMMISSIONER,   etc.  (2)  where  the   point   for consideration was the validity of the Excise Regulation I of 1915.   It  was  contended, inter alia,  on  behalf  of  the appellant  in that case that the Excise Regulation  and  the auction  sales made thereunder were ultra vires, as the  law purported  to grant monopoly of that trade to a few  persons and  this  was  inconsistent with article  19(1)(g)  of  the Constitution.  This contention was negatived and this  Court held   that  for  the  purpose  of  determining   reasonable restrictions  within  the meaning of article  19(6)  of  the Constitution  on  the right given  under  article  19(1)(g), regard  must  be had to the nature of the business  and  the conditions prevailing in a particular trade.  The State  has certainly the right to prohibit trades which are illegal  or immoral  or  injurious  to the health  and  welfare  of  the public.   The  relevant  portion of  the  judgment  runs  as follows:     "  Article 19(1)(g) of the Constitution guarantees  that all citizens have the right to practise any profession or to carry on any occupation or trade or business, and clause (6) of   the  article  authorises  legislation   which   imposes reasonable  restrictions on this right in the  interests  of the  general public.  It was not disputed that in  order  to determine the reasonableness (1) A.I.R. 1952 Orissa 42, (2) [1954] S.C. R. 873. 724 of  the restriction regard must be had to the nature of  the business    and   the   conditions   prevailing   in    that trade.......... It can also not be denied that the State has the power to prohibit trades which are illegal or immoral or injurious  to  the health and welfare of the  public.   Laws prohibiting   trades  in  noxious  or  dangerous  goods   or trafficking  in  women  cannot  be held  to  be  illegal  as enacting a prohibition and not a mere regulation."      It is contended on behalf of the respondents that these observations   clearly   indicate   that   the    expression "reasonable  restriction"  as used in article 19(6)  of  the Constitution might, in certain circumstances, include  total prohibition.   It  may  be mentioned here  that  the  Excise Regulation  is  not a prohibitory  statute  which  prohibits trading  in  liquor  by  private  citizens  altogether.   It



purports to regulate the trade in a particular way,  namely, by  putting up the right of trading in liquor  in  specified areas  to the highest bidder in auction sale.   The  general observations  occurring  in the judgment  cited  above  must therefore  have to be taken with reference to the  facts  of that case.’      Be  that as it may, although in our opinion the  normal use  of the word "restriction" seems, to be in the sense  of "limitation" and not "extinction", we would on this occasion prefer not to express any final opinion on this matter.   If the  word, "restriction" does not include total  prohibition then the law under review cannot be justified under  article 19(6).  In that case the law would be void unless it can  be supported  by  article 31.  That point will  be  dealt  with under the other point raised in the appeal.  If however  the word  "restriction" in article 19(6) of the Constitution  be taken  in  certain circumstances to include  prohibition  as well, the point for consideration then would be, whether the prohibition of the right of all private citizens to carry on the business of motor transport on public roads  within  the State  of  Uttar  Pradesh as laid down by  the  Act  can  be justified   as  reasonable  restrictions  imposed   in   the interests of the general public.  As has been held by this  Court in the case of Gooverjee v. The Excise, Commissioner, etc.(1) whether (I)  [1954] S.C.R. 873. 725 the  restrictions  are reasonable or not would depend  to  a large  extent on the nature of the trade and the  conditions prevalent  in it.  There in nothing wrong in the  nature  of the  trade  before us, which is  perfectly  innocuous.   The learned Judges of the High Court have upheld the validity of the legislation substantially on two grounds.  In the  first place,  they  have  relied  on what may be  said  to  be  an abstract proposition of law, that prohibition with a view to State monopoly is not per se unreasonable.  "In my opinion", thus  observes one of the learned Judges, "even  this  total stoppage of trade on public places and thoroughfares  cannot always  be said to be an unreasonable restriction".  In  the second  place, it has been said that the transport  services are  essential  to  the  life of the  community  and  it  is conducive to the interests of the general public to have  an efficient  system  of  transport on  public  roads.   It  is pointed out that the preamble to the Act indicates that  the legislation  was’  passed in the interests  of  the  general public  who  are undoubtedly interested in  a  suitable  and efficient road transport service, and it was\ not proved  by the petitioners that the monopoly, which was contemplated in favour  of the State in regard to this particular  business, was  not conducive to the common welfare.  As a  proposition of law, the first ground may not admit of any dispute but we think  that  the observations of Lord Porter  in  the  Privy Council case of Commonwealth of Australia and Others v. Bank of  New South Wales and Others (1) upon  which  considerable reliance  has been placed by the High Court  would  indicate the  proper  way  of  approach  to  this  question’   "Their Lordships do not intend to lay it down", thus observed  Lord Porter,  "that  in no circumstances could the  exclusion  of competition so as to create a monopoly either in a State  or Commonwealth  agency  or in some other  body  be  justified. Every  case must be judged,on its own facts and in  its  own setting  of  time and circumstance, and it may  be  that  in regard  to  some economic activities and at  some  stage  of social  development it might be maintained that  prohibition with  a  view to State monopoly was the only  practical  and



reasonable (1)  [1950] A. C. 235, 311. 93 726 manner  of  regulation".  In order to  judge  whether  State monopoly is reasonable or not, regard therefore must be  had to  the facts of each particular case in its own setting  of time and circumstances.  It is not enough to say that as  an efficient transport service is conducive to the interests of the  people,  a legislation which makes provision  for  such service  must always be held valid irrespective of the  fact as  to  what  the effect of such legislation  would  be  and irrespective of the particular conditions and  circumstances under  which the legislation was passed.  It is  not  enough that  the  restrictions are for the benefit of  the  public, they must be reasonable as well and the reasonableness could be decided only on a conspectus of all the relevant facts and circumstances.      With  regard to the second point also we do  not  think that  the learned Judges have approached the  question  from the proper stand point.  There is undoubtedly a  presumption in  favour of the constitutionality of a  legislation.   But when  the enactment on the face of it is found to violate  a fundamental  right guaranteed under article 19(1)(g) of  the Constitution, it must be held to be invalid unless those who support  the legislation can bring it within the purview  of the  exception laid down in clause (6) of the  article.   If the respondents do not place any materials before the  Court to  establish that the legislation comes within the  permis- sible limits of clause (6), it is surely not for the  appel- lants  to  prove  negatively that the  legislation  was  not reasonable  and  was  not conducive to the  welfare  of  the community.   In  the  present case  we  have  absolutely  no materials before us to say in which way the establishment of State  monopoly in regard to road transport service  in  the particular  areas would be conducive to the general  welfare of  the  public.  We do not know the conditions of  the  bus service  at  the  present  moment  or  the  conveniences  or inconveniences  of the public in regard to the same; nor  we are told how the position is likely to improve if the  State takes  over the road transport service and  what  additional amenities  or advantages the general public would  enjoy  in that event.  We mention these matters only to show 727 that these are relevant facts which might help the Court  in coming  to a decision as to the reasonableness or  otherwise of the prohibition, but unfortunately there are no materials in  the  record  relating to any one of  them.   One  thing, however,  in  our  opinion, has a  decided  bearing  on  the question of reasonableness and that is the immediate  effect which  the  legislation is likely to produce.   Hundreds  of citizens  are earning their livelihood by carrying  on  this business  on  various  routes  within  the  State  of  Uttar Pradesh.  Although they carry on the business only with  the aid of permits, which are granted to them by the authorities under  the  Motor  Vehicles Act, no  compensation  has  been allowed  to them under the statute.  It goes without  saying that as a result of the Act they will all be deprived of the means  of supporting themselves and their families and  they will  be left with their buses which will be of  no  further use  to  them and which they may not be able to  dispose  of easily  or at a reasonable price.  It may be pointed out  in this  connection that in Part IV of the  Constitution  which enunciates the directive principles of State policy, article 39(a)  expressly lays down that the State shall  direct  its



policy  towards securing "that the citizens, men  and  women equally, have the right to an adequate means of livelihood." The new clause in article 19(6) has no doubt been introduced with a view to provide that a State can create a monopoly in its own favour in respect of any trade or business; but  the amendment does not make the establishment of such monopoly a reasonable  restriction  within  the meaning  of  the  first clause  of  article 19(6).  The result of the  amendment  is that  the  State would not have to justify  such  action  as reasonable  at all in a Court of law and no objection  could be  taken to it on the ground that it is an infringement  of the   right  guaranteed  under  article  19(1)(g)   of   the Constitution.  It is quite true that if the present  statute was passed after the coming into force of the new clause  in article   19(6)  of  the  Constitution,  the   question   of reasonableness  would  not  have  arisen  at  all  and   the appellants’ case on this point, at any rate, would have been inarguable.  These are however 728 considerations  which  cannot  affect our  decision  in  the present case.  The amendment of the Constitution, which came later, cannot be invoked to validate an earlier  legislation which  must  be  regarded as unconstitutional  when  it  was passed:  As  Professor  Cooley has stated  in  his  work  on Constitutional   Limitations(1)   "a   statute   void    for u‘constitutionality  is  dead and cannot be vitalised  by  a subsequent  amendment  of  the  Constitution  removing   the constitutional objection but must be re-enacted".  We  think that  this  is  sound law and our  conclusion  is  that  the legislation in question which violates the fundamental right of the appellants under article 19(1)(g) of the Constitution and  is  not  shown to be protected by  clause  (6)  of  the article,  as it stood at the time of the enactment, must  be held to be void under article 13(2) of the Constitution.       We  now come to the second point which is in a  manner connected with the first and the question is: If the  effect of prohibition of the trade or business of the appellants by the  impugned  legislation amounts to deprivation  of  their property or interest in a commercial undertaking within  the meaning  of article 31(2) of the Constitution, does not  the legislation  offend  against the provision  of  that  clause inasmuch  as no provision for compensation has been made  in the  Act  ?  It is not seriously disputed on behalf  of  the respondents that the appellants’ right to ply motor vehicles for  gain  is,  in any event, an interest  in  a  commercial undertaking.   There  is no doubt also that  the  appellants have been deprived of this interest.  In the opinion of  the High Court, in the circumstances of the present case,  there is  no  scope  for operation of article 31(2)  of  the  Con- stitution and the reason for taking this view is thus  given in the judgment of one of the learned Judges:     "The  question  is  whether  by  depriving  the  private operators of their right to run buses on certain routes  and by deciding to run the routes itself the State acquired  the right  which was of the petitioners ? To me it appears  that it  could  not  be  said that there was  by  the  State  any acquisition   of  the  right  which  was  formerly  of   the petitioners, whether such right was (1)  VOl. 1, P. 384 note.                             729 property  or  an  interest in  a  commercial  or  industrial undertaking.  The vehicles which were being operated by  the private  operators have not been acquired by the  State  nor has  any  other  tangible property which  was  used  by  the petitioners for their business been acquired.  What has been



done  is  that  the petitioners have  been  prohibited  from operating their buses on certain routes.  This right of  the petitioners has in no way been vested in the State  inasmuch as the State always had an equal right with the  petitioners to run their buses on these routes."      According  to the High Court, therefore,  mere  depriv- ation  of  the  petitioners’ right to  run  buses  or  their interest  in a commercial undertaking is not  sufficient  to attract  the operation of article 31(2) of the  Constitution as  the deprivation has been by the authority of law  within the meaning of clause (1) of that article.  Clause (2) could be  attracted  only  if  the State  had  acquired  or  taken possession of this very right or interest of the petitioners or  in  other words if the right of the petitioners  to  run buses  had  been  acquired by or had become  vested  in  the Government.  The State, it is pointed out, has an  undoubted right  to run buses of its own on the public  thoroughfares, and  they  do not stand on the rights  of  the  petitioners. This argument, we think, is not tenable having regard to the majority decision of this Court in the case of State of West Bengal  v.  Subodh Gopal Bose and Others (1)  and  Dwarkadas Shrinivas v. The Sholapur Spinning and Weaving Co. Ltd. (2). In  view  of that majority decision it must be taken  to  be settled  now that clauses (1) and (2) of article 31 are  not mutually  exclusive in scope but should be read together  as dealing with the same subject, namely, the protection of the right  to  property by means of limitations on  the  State’s powers, the deprivation contemplated in clause (1) being  no other than acquisition or taking possession of the  property referred to in clause (2).  The learned Advocate-General  co n.  needed  this  to be the true legal  position  after  the pronouncements  of this Court referred to above.   The  fact that the buses belonging to the appellants have (1) [1954] S.C.R. 587. (2) [1954] S.C.R. 674. 730 not  been acquired by the Government is also  not  material. The  property  of  a  business  may  be  both  tangible  and intangible.   Under  the  statute  the  Government  may  not deprive the appellants of their buses or any other  tangible property  but  they are depriving them of  the  business  of running  buses on hire on public roads.  We think  therefore that  in these circumstances the legislation  does  conflict with the provision of article 31(2) of the Constitution  and as  the requirements of that clause have not  been  complied with, it should be held to be invalid on that ground.     The  next point that requires consideration is,  whether the Act or any of its provisions are discriminatory in their character  and  conflict with the rule of  equal  protection embodied in article 14 of the Constitution ?  Mr. Pathak has raised  a two-fold contention on this point.  He has  argued in  the first place that no discrimination could be made  in favour  of the State as against private individuals  in  the matter of carrying on the business of plying buses for  hire on  public  roads.  The State as a person, it  is  conceded, comes  under  a  different class or  category  from  private citizens; but the contention is that when the State  carries on  trade  as  merchants it occupies the  same  position  as private  traders  and  its acts in this  respect  cannot  be regarded  as acts of the sovereign.  Much reliance has  been placed  by the learned counsel in sup-port of this  view  on the  judgment  of  Sir Barnes Peacock in  P.  and  O.  Steam Navigation  Co.  v. The Secretary of  State(1).   The  other objection  taken  by the learned counsel is,  that  the  Act gives an unguided and unfettered discretion to the State  to



associate such persons as it likes in the transport business and  thereby allows it to discriminate between  one  citizen and another.  No rules are laid down to regulate the  choice of the State in such cases.     So  far  as the first ground is concerned,  it  is  well settled   that   mere  differentiation  does  not   make   a legislation  obnoxious to the equal protection clause.   The Legislature has always the power to make classification  and all that is necessary is that the classification should  not be arbitrary but must bear a reasonable (1)  (1861) 5 B.H.C.R. Appendix 1. 731 relation  to the object which the legislation has  in  view. There  is  no doubt that classification is inherent  in  the concept  of a monopoly; and if the object of legislation  is to  create monopoly in favour of the State with regard to  a particular  business,  obviously  the State  cannot  but  be differentiated  from  ordinary  citizens  and  placed  in  a separate  category so far as the running of the business  is concerned  and  this classification would have  a  perfectly rational relation to the object of the statute.  No doubt if the creation of a monopoly in favour of the State is  itself bad   on  the  ground  of  violating   some   constitutional provisions,  the statute would be invalid for those  reasons and the question of discrimination would not be material  at all.   In our opinion, the argument of Mr. Pathak  that  the State  ceases to function as a State as soon as  it  engages itself in a trade like ordinary trader cannot be accepted as a  sound proposition of law under the Constitution of  India at  the present day.  In the last century, when the  laissez faire  doctrine  held the field, the primary function  of  a State was considered to be maintenance of law and order  and all other activities were left to private competitors.  That conception is now changed and in place of the ’police State’ of  old, we are now having a ’welfare State.’ Chapter IV  of our Constitution which lays down the Directive Principles of State Policy clearly indicates what the functions of a State should  be  and  many  things  which  could  not  have  been considered  as  State functions when the case of P.  and  0. Steam Navigation Co. v. The Secretary of State (Supra),  was decided would certainly come within the legitimate scope  of State  duties.   Vide in this connection Lokanath  Misra  v. State of Orissa(supra).     The other contention of Mr. Pathak in regard to  article 14 though somewhat plausible at first sight does -not appear to  us  to be sound.  Section 3 of the  Act  authorises  the State Government to declare that the road transport  service in  general  or  on  particular routes  should  be  run  and operated by the State Government exclusively or by the State Government  in  conjunction with railway or  partly  by  the State Government and partly by others in accordance with the provisions of 732 the  Act The whole question is how is the last part  of  the section to be implemented and carried out?  If the State can choose  any  and every person it likes for  the  purpose  of being associated with the transport service and there are no rules  to guide its discretion, plainly the provision  would offend against article 14 of the Constitution.  The  learned Advocate-General pointed out however that the State is  only to  choose  the routes or portions of routes  on  which  the private citizens would be allowed to operate and the  number of  persons  to whom permits should be given, and  that  the granting  of permits would necessarily be regulated  by  the provisions  of Motor Vehicles Act.  This does not appear  to



us  to  be an unreasonable construction to be put  upon  the relevant  portion  of section 3 of the Act and  it  receives support  from what is laid down in section 7(c) of the  Act. On  this construction the discretion to be exercised by  the State  would be a regulated discretion guided  by  statutory rules.  We hold therefore that the appellant cannot make any grievance on this score and that the statute does not offend against article 14 of the Constitution.     The last point that remains to be considered is, whether the  Act conflicts with the guarantee of freedom  of  inter- State   and  intrastate  trade,  commerce  and   intercourse provided  for by article 301 of the Constitution  ?  Article 301 runs as follows:     "  Subject to the other provisions of this Part,  trade’ commerce  and intercourse throughout the territory of  India shall be free.  "     Article  302  authorises the Parliament to  impose  such restrictions   on  the  freedom  of  trade,   commerce   and intercourse between one State and another or within any part of  the territory of India as may be required in the  public interests.   Under article 304(b) it is competent  even  for the Legislature of a State to impose reasonable restrictions upon   the  freedom  of  trade,  commerce  and   intercourse mentioned  above in the interests of the public, but  it  is necessary that any bill or amendment for this purpose should first  receive  the sanction of the President before  it  is moved or introduced in the Legislature of a State.   Article 301 733 corresponds to section 92 of the Australian Constitution and is  even  wider than the latter inasmuch as  the  Australian Constitution  provides for the freedom of inter-State  trade only.   The High Court has negatived the contention  of  the appellants  on  this  point primarily  on  the  ground  that article  301 of the Constitution has no application  to  the present  case.  What is said is, that article  301  provides safeguards for carrying on trade as a whole as distinguished from  the rights of an individual to carry it on.  In  other words,  this  article  is  concerned  with  the  passage  of commodities  or persons either within or outside  the  State frontiers but not directly with individuals carrying on  the commerce or trade.  The right of individuals, it is said, is dealt  with under article 19(1) (g) of the Constitution  and the  two  articles have been framed in order to  secure  two different, objects.     The  question is not quite free from difficulty  and  in view  of  the  fact  that we have declared  the  Act  to  be unconstitutional  on the two grounds mentioned above, we  do not  consider  it necessary to record our decision  on  this point.   We would only desire ’to indicate  the  contentions that  have been or could be raised upon this point  and  the different views that are possible to be taken in respect  to them  so that the Legislature might take these matters  into consideration if and when they think of legislating on  this subject.     We  desire to point out that in regard to section 92  of the  Australian Constitution, which so far as inter.   State trade  is  concerned  adopts almost  the  same  language  as article 301 of our Constitution, it has been definitely held by  the  Judicial Committee in the case of  Commonwealth  of Australia  v. The Bank of New South Wales (supra), that  the rights  of  individuals do come within the  purview  of  the section.  It is true, as Lord Porter observed, that  section 92 does not create any new juristic rights but it does  give the  citizens of the State or the Commonwealth, as the  case



may  be, the right to ignore and, if necessary, to  call  on the  judicial  power to help him to resist  legislative-  or executive  actions  which offend against  the  section.   It follows from this, as his Lordship pointed out, that 94 734 the application of section 92 does not involve  calculations as to the actual present or possible future effect upon  the total value of inter-State trade, the difficulty in applying such a criterion being too obvious.  If this view is adopted in  regard  to  article  301  of  our  Constitution  it  can plausibly be argued that the legislation in the present case is  invalid as contravening the terms of the  article.   The question of reasonable restrictions could not also arise  in this case, as the bill was not introduced with the  previous sanction  of  the President as required by  the  proviso  to section  304(b).   It  is  true  that  the  consent  of  the President  was taken subsequently but the proviso  expressly insists  on  the  sanction  being  taken  previous  to   the introduction of the bill.      It  may  be argued that freedom of trade does  not,  as Lord       Porter  observed  in  the  Australian  Bank  case referred to above, mean unrestricted or unrestrained freedom and  that regulation of trade is quite compatible  with  its freedom.   As  against this it may be pointed out  that  the Constitution itself has provided in articles 302 and  304(b) how reasonable restrictions could be imposed upon freedom of trade  and commerce and it would not be proper to hold  that restrictions can be imposed aliunde these provisions in  the Constitution.   The  question would also arise  as  to  what interpretation should be put upon the expression "reasonable restrictions" and whether or not we would have to apply  the same tests as we have applied in regard to article 19(6)  of the  Constitution.  One material thing to consider  in  this connection  would  be  that although  the  Constitution  was amended  in  1951 by insertion of an  additional  clause  in article 19(6) by which State monopoly in regard to trade  or business  was taken out of the purview of article 19(1)  (g) of  the  Constitution,  yet no such  addition  was  made  in article  301 or article 304 of the Constitution and  article 301, as it stands, guarantees freedom of trade, commerce and intercourse  subject only to Part XIII of  the  Constitution and  not the other parts of the Constitution including  that dealing with fundamental rights. 735     The Australian Constitution indeed has no provision like article  19(1)  (g)  of the Indian Constitution  and  it  is certainly  an  arguable point as to whether  the  rights  of individuals alone are dealt with in article 19(1) (g) of the Constitution  leaving  the freedom of  trade  and  commerce, meaning by that expression ’only the free passage of persons and goods’ within or without a State to be dealt with  under article 301 and the following articles.     We  have  thus indicated only the points that  could  be raised and the possible views that could be taken but as  we have  said  already, we do not desire to express  any  final opinion on these points as it is unnecessary for purposes of the  present  case.  The result is that in our  opinion  the appeals should be allowed and the judgment of the High Court set  aside  A  writ in the nature of  mandamus  shall  issue against  the respondents in these appeals  restraining  them from  enforcing  the  provisions of the  U.  P.  State  Road Transport  Act,  1951,  against the appellants  or  the  men working under them.  There will be no order as to costs.                                 Appeals allowed.