S. B. DAS C. J.: - (1.) THE following Judgment of S. R. Das C. J. and B. P. Sinna J. was delivered by
(2.) WE have had the advantage of perusing 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 same here. Without committing ourselves to all the reasons adopted by our learned Brother, we agree with his following conclusions, namely, (1) that the Uttar Pradesh Transport Service (Development) Act, 1955 (Act IX of 1955), hereinafter referred to as the U. P. Act, did -not, on the passing of the Motor Vehicles (Amendment) Act, 1956 (100 of 1956), hereinafter 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 the 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 against being understood as accepting or acquiescing in the conclusion that the doctrine of eclipse cannot apply to any post-Constitution law. A post-Constitution law may infringe either a fundamental right conferred on citizens only or a fundamental right conferred on any person, citizen or non-citizen. In the first case the law will not stand in the way of the exercise by the citizens of that fundamental 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 the 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 doctrine of eclipse as explained by this court in Bhikaji Narain Dhakras v. The State of Madhya Pradesh (2) also applies to a postConstitution 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. The following Judgment of N. H. Bhagwati, K. Subba Rao and K. N, Wanchoo JJ. was delivered by K. SUBBA RAO J-: These twenty-five appeals are by 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. The said appeals arise out Writ Petitions filed by he appellants in the Allahabad High court challenging the validity of the U. P. Transport Services (Development) Act of 1955, being U. P. Act No. IX of 1955 (hereinafter referred to as the U. P. Act), and the notifications issued thereunder. All the appeals were consolidated by order of the High court.
(3.) 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 23/04/1955, passed the U. P. Act and duly published it on 24/04/1955. Under s. 3 of the U. P. Act, the government issued a notification dated 17/05/1955, whereunder it was directed that the aforesaid routes along with others should be exclucively served by the stage carriages of the government and the private stage carriages should be excluded from those routes. On 12/11/1955, 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 2/01/1956. 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 7/01/1956. 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 23/06/1956, and on 25/06/1956, 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 7/07/1956, a notice was sent to filed Writ Petitions in the Allahabad High court challenging the validity of the U. P. Act and the notifications issued thereunder. The facts in Civil Appeal No. 429 of 1958 are slightly different from those in other appeals and they may be stated: The appellant's application for renewal of his permanent permit was rejected in 1953; but, on appeal, the State Transport Authority tribunal allowed his appeal on 6/09/1956, and directed his permit to be renewed for three years beginning from 1/11/1953. Pursuant to the order of the tribunal, the appellant's pert-nit was renewed with effect from 1/11/1953, and it was made valid up to 31/10/1956. 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 11/10/1956, 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. ;