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1991 Supreme(AP) 192
Andhra Pradesh High Court
Judges : A.VENKATRAMA REDDY, SARDAR ALI KHAN
Kodali Kumara Swamy - Appellant
Versus
State OF A.P. - Respondent
Decided On : 04-26-91
The fundamental right guaranteed under Article 19(1)(g) is absolute in its nature and content but subject to reasonable restrictions on the exercise of such right as provided under Article 19(6)(i) and (ii) of the Constitution.
Headnote:
MOTOR VEHICLES ACT - SECTION 99 - CONSTITUTIONALITY - ARTICLE 19(1)(G) AND 19(6)(II) - INTERPRETATION - SCHEME FOR NATIONALISATION OF BUS ROUTES - VALIDITY - LIMITATION UNDER SECTION 100(4) - APPLICABILITY.
Fact of the Case:
90 private bus operators of Vijayawada filed a writ petition challenging the impugned notification published in Deccan Chronicle English Newspaper Daily dated 9-2-1991, issued in accordance with the directions of the High Court of Andhra Pradesh in W.P. Nos. 18385/89 and 11867/90 dated 28-12-1990 and of the Supreme Court of India in SLP Nos. 667/91 and 668/91 dated 28-1-1991. They sought a declaration that the impugned notification is illegal and void and not in accordance with the order of the High Court passed in the aforementioned writ petitions. They also challenged the validity of Section 99 of the Motor Vehicles Act, 1988, alleging that it is a fraud on the Constitution as it ignores the difference between profession and occupation on the one hand from trade, business, and industry on the other.
Finding of the Court:
1. The fundamental right guaranteed under Article 19(1)(g) is absolute in its nature and content but subject to reasonable restrictions on the exercise of such right as provided under Article 19(6)(i) and (ii) of the Constitution. 2. The grant of a stage carriage permit is not as a matter of occupation to be followed by the operators, but it is only with a view to enable them to run the buses in accordance with the terms and conditions laid down in the said permit. 3. The term "service" occurring in Article 19(6)(ii) is not mentioned as a fundamental right under Article 19(1)(g) because what is provided is a fundamental right to practise any profession, or to carry on any occupation, trade or business, but not any service. 4. The impugned notification, published in accordance with the directions of the High Court and the Supreme Court, is valid and binding. 5. Section 99 of the Motor Vehicles Act, 1988, is intra vires the authority of the State Legislature and its validity cannot be questioned in light of the settled principles of law. 6. The plea of limitation under Section 100(4) of the Motor Vehicles Act, 1988, cannot be raised by the petitioners as the period of limitation started running from 1-7-1989, and the publication of the notification was made on 29-12-1989, well within the stipulated time.
Issues: 1. Whether the impugned notification, published in accordance with the directions of the High Court and the Supreme Court, is illegal and void. 2. Whether Section 99 of the Motor Vehicles Act, 1988, is a fraud on the Constitution. 3. Whether the plea of limitation under Section 100(4) of the Motor Vehicles Act, 1988, can be raised by the petitioners.
Ratio Decidendi: 1. The fundamental right guaranteed under Article 19(1)(g) is absolute in its nature and content but subject to reasonable restrictions on the exercise of such right as provided under Article 19(6)(i) and (ii) of the Constitution. 2. The grant of a stage carriage permit is not as a matter of occupation to be followed by the operators, but it is only with a view to enable them to run the buses in accordance with the terms and conditions laid down in the said permit. 3. The term "service" occurring in Article 19(6)(ii) is not mentioned as a fundamental right under Article 19(1)(g) because what is provided is a fundamental right to practise any profession, or to carry on any occupation, trade or business, but not any service. 4. The impugned notification, published in accordance with the directions of the High Court and the Supreme Court, is valid and binding. 5. Section 99 of the Motor Vehicles Act, 1988, is intra vires the authority of the State Legislature and its validity cannot be questioned in light of the settled principles of law. 6. The plea of limitation under Section 100(4) of the Motor Vehicles Act, 1988, cannot be raised by the petitioners as the period of limitation started running from 1-7-1989, and the publication of the notification was made on 29-12-1989, well within the stipulated time.
Final Decision: The writ petition was dismissed. The court held that the impugned notification is valid and binding, Section 99 of the Motor Vehicles Act, 1988, is intra vires the authority of the State Legislature, and the plea of limitation under Section 100(4) of the Motor Vehicles Act, 1988, cannot be raised by the petitioners.
Key Points: - The judgment states that Article 19(1)(g) rights are absolute but subject to reasonable restrictions under Article 19(6)(i) and (ii). (!) - It interprets 19(6)(ii) as allowing the State to carry on trade, business, industry, or service by the State or a state-controlled corporation, potentially excluding citizens, which supports state monopoly/nationalisation in transport. (!) (!) (!) - Section 99 of the Motor Vehicles Act, 1988 is held intra vires the State Legislature and valid in enabling state takeover of road transport services, not a fraud on the Constitution. (!) - The petitioners’ challenge to the impugned notification and to Section 99 was rejected; the notification is valid and binding. (!) (!) - The period of limitation under Section 100(4) of the 1988 Act does not defeat the scheme approval where publication and directions by the High Court/Supreme Court established a calendar of events; limitation arguments were rejected. (!) - The grant of stage carriage permits is a regulatory measure, not an occupation rights conferment, and permits can be regulated, restricted, or cancelled. (!) (!) - The term "service" in Article 19(6)(ii) is linked to state-managed road transport services, not a citizen’s occupation; hence nationalisation concepts are permissible. (!) (!) - The decision references prior case law recognizing state monopolies, takeovers under Chapter IV-A, and the nature of permits as regulatory. (!)
What is the scope of Article 19(1)(g) in relation to Article 19(6) regarding the right to practise a profession or carry on an occupation and the restrictions permissible under the Constitution?
What is the legality and intra vires status of Section 99 of the Motor Vehicles Act, 1988 in the context of state monopoly and nationalisation of bus services?
What is the applicability of Section 100(4) of the Motor Vehicles Act, 1988 to schemes published prior to its enactment and the relevant limitation period for challenging such schemes?
( 1 ) NINETY private bus operators of Vijayawada have filed this writ petition for the issue of a writ of mandamus declaring that the petitioners are having fundamental rights under Art. 21 of the Constitution of India i. e. , the right to live and to carry on their profession or occupation under Art. 19 (1) (g) of the Constitution of India in running the stage carriage buses as per the original permits granted by the authorities on Vijayawada Town Service routes. They also seek a declaration that Section 99 of the Motor Vehicles Act, 1988 (Act No. 59 of 1988) is a fraud on the Constitution of India and seek a further declaration that the impugned notification, published in Deccan Chronicle English News- Paper Daily dated 9-2-1991 (bearing Memorandum No. 22/tr. IV/90 dated 5-2-1991) cannot affect the fundamental right of the petitioners in carrying on their profession and occupation of running the buses. They also seek a declaration that the impugned notification dated 5-2-1991 is illegal and void and not in accordance with the order of this court passed in W. P. Nos. 18385/89 and 11867/90 dated 28-12-1990.
( 2 ) THIS comprehensive prayer in the writ petition, therefore, is to be judged in the light i of the facts alleged in the affidavit filed by the 2nd petitioner in support of the writ petition.
( 3 ) ALL the petitioners are citizens of India and they claim to have a fundamental right to carry on their profession and occupation guaranteed to them under Art. 19 (1) (g) of the Constitution of India. Furthermore, under Art. 19 (6) (i) it is provided that professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business can be prescribed by the State authorities. Under Art. I9 (6) (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise is provided.
( 4 ) THE petitioners were granted permits to run buses which they claim to be a part of their profession and occupation. The concept of nationalisation under Art. 19 (6) (ii) of the Constitution of India is assailed by the petitioners in so far as it affects their profession or occupation to run the buses on the strength of the permits granted to them. The second aspect of the matter is that the petitioners allege that S. 99 of the Motor Vehicles Act, 1988 is a fraud on the Constitution as it ignores the difference existing between the profession and occupation on the one hand from trade, business and industry on the other.
( 5 ) ON 9-2-1991 the Govt. of Andhra Pradesh published a notification bearing Memorandum No. 22/tr. lv/90, dated 5-2-1991 of the Transport, Roads and Buildings (Tr. IV) Department, in Deccan Chronicle according to which notice was given in accordance with the directions of the High Court of Andhra Pradesh in W. P. Nos. 18385/89 and 11867/90 dated 28-12-1990 and of the Supreme Court of India in SLP Nos. 667/91 and 668/91 dated 28-1-1991. The object of this notification is to give information to the general public and to invite objections from them with reference to the schemes mentioned therein and the 66 routes enumerated in the said notice. The petitioners further allege that the impugned notice is void and illegal as it is not in accordance with any of the provisions of the Motor Vehicles Act. It is also alleged that most of the petitioners are not covered by the writ petitions mentioned in the notice and they are covered by W. P. Nos. 98/91 and 430/91 dated 4-2-1991. It is also alleged by the petitioners that the proceedings in the notification are barred by limitation under S. 100 (4) of the Motor Vehicles Act, 1988.
( 6 ) SRI K. R. K. Vara Prasad, learned counsel appearing for the petitioners, has made three main submissions in this case. His first submission is that under Art. 19 (1) (g) of the Constitution of India the petiti
