Full Judgment Text
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PETITIONER:
RAI SAHIB RAM JAWAYA KAPURAND OTHERS
Vs.
RESPONDENT:
THE STATE OF PUNJAB(AND CONNECTED PETITIONS).
DATE OF JUDGMENT:
22/04/1955
BENCH:
ACT:
Constitution of India, Arts. 19(1)(g), 73 and 162-Printing,
publishing and selling of text books for recognised schools
in the State of Punjab taken by the State Government
exclusively in their own hands-Whether any fundamental right
of the private publishers who were ousted from the business,
contravened-Art. 19(1)(g) of the Constitution-Arts. 73 and
162-Whether contain any definition of executive function-
Union executive or the State executive-Whether legislation
by Parliament or State Legislature on certain items ap-
pertaining to their respective lists, a condition precedent
to the Union or State executive functioning in respect to
them.
HEADNOTE:
For a long period of time prior to 1950 the text books for
recognised schools in the State of Punjab were prepared by
private publishers with their own money and under their own
arrangements and they were submitted for the approval of the
Government. The Government approved some books on each
subject as alternative text books, leaving it to the
discretion of the Head Masters of different schools to
select any alternative book on each subject. In May 1950
books on certain subjects (like agriculture, history, social
studies, etc.) were prepared and published by the Government
themselves without inviting offers from private publishers.
With respect to other subjects, offers were invited from
"publishers and authors". The alternative method was given
up and only one text book on ,each subject was selected.
The Government charged as royalty 5% on the sale price of
all the approved text books. In 1952 a notification was
issued by the Government which omitted the word "Publishers"
altogether and invited only "authors and others" to submit
books for approval by the Government. The "authors and
others" whose books were approved, had to enter into an
agreement in the form prescribed by the Government the
principal term of the agreement was that the copyright in
these books would vest absolutely in Government and the
authors and others" would get a royalty of 5% on the sale
price of the text books. It was contended that-the
publishing, printing and selling of text books was thus
taken by the Government exclusively into its own hands and
the private publishers were altogether ousted from the
business. The petitioners, who purport to carry on the
business of preparing, printing, publishing and selling text
books for recognised schools in the Punjab, pro29
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ferred the present petition under Art. 32 of the
Constitution praying for writs of mandamus directing the
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Punjab Government to withdraw the notifications of 1950 and
1952 on the ground that they contravened the fundamental
rights of the petitioners guaranteed under the Constitution.
Held that the action of the Government, whether it was good
or bad, does not amount to an infraction of the fundamental
right guaranteed by Art. 19(1)(g) of the Constitution. In
the present case no fundamental rights of the petitioners
were violated by the notifications and the acts of the
executive Government of the Punjab done by them in
furtherance of their policy of nationalisation of the text
books for the school students.
A more chance or prospect of having particular customers
cannot be said to be a right to property or to any interest
or undertaking within the meaning of Art. 31(2) of the
Constitution and no question of payment of compensation can
arise because the petitioners have been deprived of the
same.
Articles 73 and 162 of the Constitution do not contain any
definition as to what the executive function is and what
activities would legitimately come within its scope. They
are concerned primarily with the distribution of executive
power between the Union on the one hand and the component
States on the other. They do not mean-that it is only when
Parliament or the State Legislature has legislated on
certain items appertaining to their respective lists that
the Union executive or the State executive, as the case may
be,can proceed to function in respect of them. On the other
hand, the language of Art. 162 Clearly indicates that the
powers of the State executive do extend to matters upon
which the State Legislature is competent to legislate and
are not confined to matters over which legislation has been
passed already. The same principle underlies Art. 73 of the
Constitution.
The Commonwealth and the Central Wool Committee v. The
Colonial Combing, Spinning and Weaving Co. Ltd. (31 C.L.R.
421), Attorney-General for Victoria v. The Commonwealth, (52
C.L.R. 533) and Motilal 1. The Government of the State of
Uttar Pradesh (A.I.R. 1951 Allahabad 257), referred to.
JUDGMENT:
ORIGINAL JURISDICTION: Petitions Nos. 652 of 1954 and 71 to
77 and 85 of 1955.
Under Article 32 of the Constitution for the enforcement of
fundamental rights.
G. S. Pathak, (P. N. Mehta and G. C. Mathur, with him)
for the petitioners in Petition No. 652 of 1.954.
P. N. ˜Mehta and G. ˜0. ˜Mathur, for the petitioners in
Petitions Nos. 71 to 77 and 85 of 1955.
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S.M. Sikri, Advocate-Generalfor the State of Punjab (Jindra
Lal and P. G. Gokhale, with him) for the respondent in all
petitions.
1955. April 12. The following Judgments were delivered.
PETITION NO. 652 OF 1954.
MUKHERJEA C. J.-This is a petition under article 32 of the
Constitution, preferred by six persons, who purport to carry
on the business of preparing, printing, publishing and,
selling text books for different classes in the schools of
Punjab, particularly for the primary and middle classes,
under the name and style "Uttar Chand Kapur & Sons". It is
alleged that the Education Department of the Punjab
Government has in pursuance of their so-called policy of
nationalisation of text books, issued a series of
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notifications since 1950 regarding the printing, publication
and sale of these books which have not only placed
unwarrantable restrictions upon the rights of the
petitioners to carry on their business but have practically
ousted them and other fellow-traders from the business
altogether. It is said that no restrictions could be
imposed upon the petitioners’ right to carry on the trade
which is guaranteed under article 19(1)(g) of the
Constitution by mere executive orders without proper
legislation and that the legislation, if any, must conform
to the requirements of clause (6) of article 19 of the
Constitution. Accordingly, the petitioners pray for writs
in the nature of mandamus directing the Punjab Government to
withdraw the notifications which have affected their rights.
To appreciate the contentions that have been raised by the
learned counsel who appeared for the parties before us, it
will be necessary to narrate certain relevant facts. In the
State of Punjab, all recognised schools have got to follow
the course of studies approved by the Education Department
of the Government and the use, by the pupils, of the text
books prescribed or authorised by the Department is a con-
dition precedent to the granting of recognition to a
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school. For a long period of time prior to 1950, the method
adopted by the Government for selection and approval of text
books for recognised schools was commonly known as the
alternative method and the procedure followed was shortly
this: Books on relevant subjects, in accordance with the
principles laid down by the Education Department, were
prepared by the publishers with their own money and under
their own arrangements and they were submitted for approval
of the Government. The Education Department after proper
scrutiny selected books numbering between 3 and 10 or even
more on each subject as alternative text books, leaving it
to the discretion of the Head Masters of the different
schools, to select any one of the alternative books on a
particular subject out of the approved list. The Government
fixed the prices as well as the size and contents of the
books and when these things were done it was left to the
publishers to print, publish and sell the books to the
pupils of different schools according to the choice made by
their respective Head Masters. Authors, who were not pub-
lishers, could also submit books for approval and if any of
their books were approved, they had to make arrangements for
publishing the same and usually they used to select some one
of the publishers already on the line to do the work.
This procedure, which was in vogue since 1905, was altered
in material particulars on and from May 1950. By certain
resolutions of the Government passed on or about that time,
the whole of the territory of Punjab, as it remained in the
Indian Union after partition, was divided into three Zones.
The text books on certain subjects like agriculture,
history, social studies, etc. for all the zones were
prepared and published by the Government without inviting
them from the publishers. With respect to the remaining
subjects, offers were still invited from "publishers and
authors" but the alternative system was given up and only
one text book on each subject for each class in a particular
zone was selected. Another change introduced at this time
was that the Government charged, as royalty, 5% on the sale
price of all the
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approved text books. The result therefore was that the
Government at this time practically took upon themselves the
monopoly of publishing the textbooks on some of the subjects
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and with regard to the rest also, they reserved for
themselves a certain royalty upon the sale proceeds.
Changes of a far more drastic character however were
introduced in the year 1952 by a notification of the
Education Department issued on the 9th of August 1952 and it
is against this notification that the complaints of the
petitioners are mainly directed. This notification omitted
the word "publishers" altogether and invited only the
"authors and others" to submit books for approval by the
Government. These "authors and others", whose books were
selected, bad to enter into agreements in the form
prescribed by the Government and the principal terms of the
agreement were that the copyright in these books would vest
absolutely in the Government and the "authors and others"
would only get a royalty at the rate of 5% on the sale of
the text books at the price or prices specified in the list.
Thus the publishing, printing and selling of the books were
taken by the Government exclusively in their own hands and
the private publishers were altogether ousted from this
business. The 5% royalty, in substance, represents the
price for the sale of the copyright and it is paid to an
author or any other person who, not being the author, is the
owner of the copyright and is hence competent in law to
transfer the same to the Government. It is against these
notifications of 1950 and 1952 that the present petition
under article 32 of the Constitution is directed and the
petitioners pray for withdrawal of these notifications on
the ground that they contravene the fundamental rights of
the petitioners guaranteed under the Constitution.
The contentions raised by Mr. Pathak, who appeared in
support of the petitioners, are of a three-fold character.
It is contended in the first place that the executive
Government of a State is wholly incompetent, without any
legislative sanction, to engage in any trade or business
activity and that the acts of
230
the Government in carrying out their policy of establishing
monopoly in the business of printing and publishing text
books for school students is wholly without jurisdiction and
illegal. His second contention is, that assuming that the
State could create a monopoly in its favour in respect of a
particular trade or business, that could be done not by any
executive act but by means of a proper legislation which
should conform to the requirements of article 19(6) of the
Constitution. Lastly, it is argued that it was not open to
the Government to deprive the petitioners of their interest
in any business or undertaking which amounts to property
without authority of law and without payment of compensation
as is required under article 31 of the Constitution.
The first point raised by Mr. Pathak, in substance, amounts
to this, that the Government has no power in law to carry on
the business of printing or selling text books for the use
of school students in competition with private agencies
without the sanction of the legislature. It is not argued
that the functions of a modern State like the police States
of old are confined to mere collection of taxes or
maintenance of laws and protection of the realm from
external or internal enemies. A modern State is certainly
expected to engage in all activities necessary for the
promotion of the social and economic welfare of the
community. What Mr. Pathak says, however, is, that as our
Constitution clearly recognises a division of governmental
functions into three categories, viz., the legislative, the
judicial and the executive, the function of the executive
cannot but be to execute the laws passed by the legislature
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or to supervise the enforcement of the same. The
legislature must first enact a measure which the executive
can then carry out. The learned counsel has, in support of
this contention, placed considerable reliance upon articles
73 and 162 of our Constitution-and also upon certain decided
authorities of the Australian High Court to which we shall
presently refer.
Article 73 of the Constitution relates to the executive
powers of the Union, while the corresponding
231
provision in regard to the executive powers of a State is
contained in article 162. The provisions of these articles
are analogous to those of sections 8 and 49 (2) respectively
of the Government of India Act, 1935 and lay down the rule
of distribution of executive powers between the Union and
the States, following, the same analogy as is provided in
regard to the distribution of legislative powers between
them. Article 162, with which we are directly concerned in
this case, lays down:
"Subject to the provisions of this Constitution, the
executive power of a State shall extend to the matters with
respect to which the Legislature of the State has power to
make laws:
Provided that in any matter with respect to which the
Legislature of a State and Parliament have power to make
laws, the executive power of the State shall be subject to,
and limited by, the executive power expressly conferred by
this Constitution or by any law made by Parliament upon the
Union or authorities thereof".
Thus under this article the executive authority of the State
is exclusive in respect to matters enumerated in List II of
Seventh Schedule. The authority also extends to the
Concurrent List except as provided in the Constitution
itself or in any law passed by the Parliament. Similarly,
article 73 provides that the executive powers of the Union
shall extend to matters with respect to which the Parliament
has power to make laws and to the exercise of such rights,
authority and jurisdiction as are exercisable by the Govern-
ment of India by virtue of any treaty or any agreement. The
proviso engrafted on clause (1) further lays down that
although with regard to the matters in the Concurrent List
the executive authority shall be ordinarily left to the
State it would be open to the Parliament to provide that in
exceptional cases the executive power of the Union shall
extend to these matters also. Neither of these articles
contain any definition as to what the executive function is
and what activities would legitimately come within its
scope. They are concerned primarily with the distri-
232
bution of the executive power between the Union on the one
hand and the States on the other. They do not mean, as Mr.
Pathak seems to suggest, that it is only when the Parliament
or the State Legislature has legislated on certain items
appertaining to their respective lists, that the Union or
the State executive, as the case may be, can proceed to
function in respect to them. On the other hand, the
language of article 162 clearly indicates that the powers of
the State executive do extend to matters upon which the
State Legislature is competent to legislate and are not con-
fined to matters over which legislation has been passed
already. The same principle underlies article 73 of the
Constitution. These provisions of the Constitution
therefore do not lend any support to Mr. Pathak’s
contention.
The Australian cases upon which reliance has been placed by
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the learned counsel do not, in our opinion, appear to be of
much help either. In the first(1) of these cases, the
executive Government of the Commonwealth during the
continuance of the war, entered into a number of agreements
with a company which was engaged in the manufacture and sale
of wool-tops. The agreements were of different types. By
one class of agreements, the Commonwealth Government gave
consent to the sale of wool-tops by the company in return
for a share of the -profits of the transactions (called by
the parties "a licence fee"). Another class provided that
the business of manufacturing wool-tops should be carried on
by the company as agents for the Commonwealth in
consideration of the company receiving an annual sum from
the Commonwealth. The rest of the agreements were a
combination of these two varieties. It was held by a Full
Bench of the High Court that apart from any authority
conferred by an Act of Parliament or by regulations
thereunder, the executive Government of the Commonwealth had
no power to make or ratify any of these agreements. The
decision, it may be noticed, was based substantially upon
the provision of section 61 of the Australian Constitution
which is worded as follows:
(1) The Commtmonwwealth and the Central Wool Committee v.
The Colonial Combining, Spinning and Weaving Co. Ltd., 31
C.L.R. 421.
233
"The executive power of the Commonwealth is vested in the
Queen and is exercised by the Governor-General as the
Queen’s representative and extends to the execution and
maintenance of the Constitution and of the laws of the
Commonwealth",
In addition to this, the King could assign other functions
and powers to the Governor-General under section 2 but in
this particular case no assignment of any additional powers
was alleged or proved. The court held that the agreements
were not directly authorised by the Parliament or under the
provisions of any statute and as they were not for the
execution and maintenance of the Constitution they must be
held to be void. Isacs, J., in his judgment, dealt elabo-
rately with the two types of agreements and held that the
agreements, so far as they purported to bind the company to
pay to the Government money, as the price of consents,
amounted to the imposition of a tax and were void without
the authority of Parliament. The other kind of agreements
which purported to bind the Government to pay to the company
a remuneration for manufacturing wool-tops was held to be an
appropriation of public revenue and being without
legislative authority was also void.
It will be apparent that none of the principles indicated
above could have any application to the circumstances of the
present case. There is no provision in our Constitution
corresponding to section 61 of the Australian Act. The
Government has not imposed anything like taxation or licence
fee in the present case nor have we been told that the
appropriation of public revenue involved in the so-called
business in text books carried on by the Government has not
been sanctioned by the legislature by proper Appropriation
Acts.
The other case(1) is of an altogether different character
and arose in the following way. The Commonwealth Government
had established a clothing factory in Melbourne for the
purpose of making naval and military uniforms for the-
defence forces and
(1) Vide Attorney-General for Victoria v. The Commonwealth
52 C.L.R 533
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234
postal employees. In times of peace the operations of the
factory included the supply of uniforms for other
departments of the Commonwealth and for employees in various
public utility services. The Governor-General deemed such
peace-time operations of the factory necessary for the
efficient defence of the Commonwealth inasmuch as the
maintenance intact of the trained complement of the factory
would assist in meeting wartime demands. A question arose
as to whether operations of the factory for such purposes in
peace:-time were authorised by the Defence Act. The
majority of the court answered the question in the
affirmative. Starke, J. delivered a dissenting opinion upon
which Mr. Pathak mainly relied. The learned Judge laid
stress on section 61 of the Constitution Act according to
which the executive power of the Commonwealth extended to
the maintenance of the Constitution and of the laws of the
Commonwealth and held that there was nothing in the
Constitution or any law of the Commonwealth which enabled
the Commonwealth to establish and maintain clothing
factories for other than Commonwealth purposes. The
opinion, whether right or wrong, turns upon the particular
facts of the case and upon the provision of section 61 of
the Australian Act and it cannot and does not throw any
light on the question that requires decision in the present
case.
A question very similar to that in the present case did
arise for consideration before a Full Bench of the Allahabad
High Court in Motilal v. The Government of the State of
Uttar Pradesh(1). The point canvassed there was whether the
Government of a State has power under the Constitution to
carry on the trade or business of running a bus service in
the absence of a legislative enactment authorising the State
Government to do so. Different views were expressed by
different Judges on this question. Chief Justice Malik was
of opinion that in a written Constitution like ours the
executive power may be such as is given to the executive or
is implied, ancillary or inherent.
(1) A.I.R. 1951 Allahabad 257.
235
It must include all powers that may be needed to carry into
effect the aims and objects of the Constitution. It must
mean more than merely executing the laws. According to the
Chief Justice the State has a right to hold and manage its
own property and carry on such trade or business as a
citizen has the right to carry on, so long as such activity
does not encroach upon the rights of others or is not
contrary to law. The running of a transport business there-
fore was not per se outside the ambit of the executive
authority of the State. Sapru, J. held that the power to
run a Government bus service was incidental to the power of
acquiring property which was expressly conferred by article
298 of the Constitution. Mootham and Wanchoo, JJ., who
delivered a common judgment, were also of the opinion that
there was no need for a specific legislative enactment to
enable a State Government to run a bus service. In the
opinion of these learned Judges an act would be within the
executive power of the State if it is not an act which has
been assigned by the Constitution of India to other
authorities or bodies and is not contrary to the provisions
of any law and does not encroach upon the legal rights of
any member of the public. Agarwala, J. dissented from the
majority view and held that the State Government had no
power to run a bus service in the absence of an Act of the
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legislature authorising the State to do so. The opinion of
Agarwala J. undoubtedly supports the contention of Mr.
Pathak but it appears to us to be too narrow and
unsupportable.
It may not be possible to frame an exhaustive definition of
what executive function means and implies. Ordinarily the
executive power connotes the residue of governmental
functions that remain after legislative and judicial
functions are taken away. The Indian Constitution has not
indeed recognised the doctrine of separation of powers in
its absolute rigidity but the functions of the different
parts or branches of the Government have been sufficiently
differentiated and consequently it can very well be said
that our Constitution does not contemplate
236
assumption, by one organ or part of the State, of functions
that-essentially belong to another. The executive indeed
can exercise the powers of departmental or subordinate
legislation when such powers are delegated to it by the
legislature. It can also, when so empowered, exercise
judicial functions in a limited way. The executive
Government, however, can never go against the provisions of
the Constitution or of any law. This is clear from the
provisions of article 154 of the Constitution but, as we
have already stated, it does not follow from this that in
order to enable the executive to function there must be a
law already in existence and that the powers of the
executive are limited merely to the carrying out of these
laws.
The limits within which the executive Government can
function under the Indian Constitution can be ascertained
without much difficulty by reference to the form of the
executive which our Constitution has set up. Our
Constitution, though federal in its structure, is modelled
on the British Parliamentary system where the executive is
deemed to have the primary responsibility for the
formulation of governmental policy and its transmission into
law though the condition precedent to the exercise of this
responsibility is its retaining the confidence of the
legislative branch of the State. The executive function
comprises both the determination of the policy as well as
carrying it into execution. This evidently includes the
initiation of legislation, the maintenance of order, the
promotion of social and economic welfare, the direction of
foreign policy, in fact the carrying on or supervision of
the general administration of the State.
In India, as in England, the executive has to act subject to
the control of the legislature; but in what way is this
control exercised by the legislature? Under article 53(1)
of our Constitution, the executive power of the Union is
vested in the President but under article 75 there is to be
a Council of Ministers with the Prime Minister at the head
to aid and advise the President in the exercise of his
functions. The President has thus been made a formal or
constitutional
237
head of the executive and the real executive powers are
vested in the Ministers or the Cabinet. The same provisions
obtain in regard to the Government of States; the Governor
or the Rajpramukh, as the case may be, occupies the position
of the head of the executive in the State but it is
virtually the council of Ministers in each State that
carries on the executive Government. In the Indian
Constitution, therefore, we have the same system of
parliamentary executive as in England and the council of
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Ministers consisting, as it does, of the members of the
legislature is, like the British Cabinet, "a hyphen which
joins, a buckle which fastens the legislative part of the
State to the executive part". The Cabinet enjoying, as it
does, a majority in the legislature concentrates in itself
the virtual control of both legislative and executive func-
tions; and as the ’Ministers constituting the Cabinet are
presumably agreed on fundamentals and act on the principle
of collective responsibility, the most important questions
of policy are all formulated by them.
Suppose now that the Ministry or the executive Government of
a State formulates a particular policy in furtherance of
which they want to start a trade or business. Is it
necessary that there must be a specific legislation
legalising such trade activities before they could be
embarked upon? We cannot say that such legislation is
always necessary. If the trade or business involves
expenditure of funds, it is certainly required that
Parliament should authorise such expenditure either directly
or under the provisions of a statute. What is generally
done in such cases is, that the sums required for carrying
on the business are entered in the annual financial
statement which the Ministry has to lay before the House or
Houses of Legislature in respect of every financial year
under article 202 of the Constitution. So much of the esti-
mates as relate to expenditure other than those charged on
the consolidated fund are submitted in the form of demands
for grants to the legislature and the legislature has the
power to assent or refuse to assent to any such demand or
assent to a demand subject to reduc-
238
tion of the amount (article 203). After the grant is
sanctioned, an Appropriation Bill is introduced to provide
for the appropriation out of the consolidated fund of the
State of all moneys required to meet the grants thus made by
the Assembly (article 204). As soon as the Appropriation
Act is passed, the expenditure made under the heads covered
by it would be deemed to be properly authorised by law under
article 266(3) of the Constitution.
It may be, as Mr. Pathak contends, that the Appropriation
Acts are no substitute for specific legislation and that
they validate only the expenses out of the consolidated
funds for the particular years for which they are passed;
but nothing more than that may be necessary for carrying on
of the trade or business. Under article 266(3) of the
Constitution no moneys out of the consolidated funds of
India or the consolidated fund of a State shall be
appropriated except in accordance with law and for the
purposes and in the manner provided in this Constitution.
The expression "law" here obviously includes the Appro-
priation Acts. It is true that the Appropriation Acts
cannot be said to give a direct legislative sanction to the
trade activities themselves. But SO long as the trade
activities are carried on in pursuance of the policy which
the executive Government has formulated with the tacit
support of the majority in, the legislature, no objection on
the score of their not being sanctioned by specific
legislative provision can possibly be raised. Objections
could be raised only in regard to the expenditure of public
funds for carrying on of the trade or business and to these
the Appropriation Acts would afford a complete answer.
Specific legislation may indeed be necessary if the
Government require certain powers in addition to what they
possess under ordinary law in order to carry on the
particular trade or business. Thus when it is necessary to
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encroach upon private rights in order to enable the
Government to carry on their business, a specific
legislation sanctioning such course would have to be passed.
239
In the present case it is not disputed that the entire
expenses necessary for carrying on the business of printing
and publishing the text books for recognised schools in
Punjab were estimated and shown in the annual financial
statement and that the demands for grants, which were made
under different heads, were sanctioned by the State
Legislature and due Appropriation Acts were passed. For the
purpose of carrying on the business the Government do not
require any additional powers and whatever is necessary for
their purpose, they can have by entering into contracts with
authors and other people. This power of contract is
expressly vested in the Government under article 298 of the
Constitution. In these circumstances, we are unable to
agree with Mr. Pathak that the carrying on of the business
of printing and publishing text books was beyond the
competence of the executive Government without a specific
legislation sanctioning such course.
These discussions however are to some extent academic and
are not sufficient by themselves to dispose of the
petitioners’ case. As we have said already, -the executive
Government are bound to conform not only to the law of the
land but also to the provisions of the Constitution. The
Indian Constitution is a written Constitution and even the
legislature cannot override the fundamental rights
guaranteed by it to the citizens. Consequently, even if the
acts of the executive are deemed to be sanctioned by the
legislature, yet they can be declared to be void and
inoperative if they infringe any of the fundamental rights
of the petitioners guaranteed under Part III of the Consti-
tution. On the other hand, even if the acts of the
executive are illegal in the sense that they are not
warranted by law, but no fundamental rights of the
petitioners have been infringed thereby, the latter would
obviously have no right to complain under article 32 of the
Constitution though they may have remedies elsewhere if
other heads of rights are infringed. The material question
for consideration therefore is: What fundamental rights of
the petitioners, if any, have been violated by the
notifications
240
and acts of the executive Government of Punjab undertaken by
them in furtherance of their policy of nationalisation of
the text books for the school students?
The petitioners claim fundamental right under article
19(1)(g) of the Constitution which guarantees, inter alia,
to all persons the right to carry on any trade or business.
The business which the petitioners have been carrying on is
that of printing and publishing books for sale including
text books used in the primary and middle classes of the
schools in Punjab. Ordinarily it is for the school
authorities to prescribe the text books that are to be used
by the students and if these text books are available in the
market the pupils can purchase them from any book-seller
they like. There is no fundamental right in the publishers
that any of the books printed and published by them should
be prescribed as text books by the school authorities or if
they are once accepted as text books they cannot be stopped
or discontinued in future. With regard to the schools which
are recognised by the Government the position of the pub-
lishers is still worse. The recognised schools receive aids
of various kinds from the Government including grants for
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the maintenance of the institutions, for equipment,
furniture, scholarships and other things and the pupils of
the recognised schools are admitted to the school final
examinations at lower rates of fees than those demanded from
the students of non-recognised schools. Under the school
code, one of the main conditions upon which recognition is
granted by Government is that the school authorities must
use as text books only those which are prescribed or autho-
rised by the Government. So far therefore as the recognised
schools are concerned-and we are concerned only with these
schools in the present case the choice of text books rests
entirely with the Government and it is for the Government to
decide in which way the selection of these text books is to
be made. The procedure hitherto followed was that the
Government used to invite publishers and authors to submit
their books for examination and approval by
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the Education Department and after selection was made by the
Government, the size, contents as well as the prices of the
books were fixed and it was left to the publishers or
authors to print and publish them and offer them for sale to
the pupils. So long as this system was in vogue the only
right which publishers, like the petitioners had, was to
offer their books for inspection and approval by the Govern-
ment. They had no right to insist on any of their books
being accepted as text books. So the utmost that could be
said is that there was merely a chance or prospect of any or
some of their books being approved as text books by the
Government. Such chances are incidental to all trades and
businesses and there is no fundamental right guaranteeing
them. A trader might be lucky in securing a particular
market for his goods but if he loses that field because the
particular customers for some reason or other do not choose
to buy goods from him, it is not open to him to say that it
was his fundamental right to have his old customers for
ever. On the one hand, therefore, there was nothing but a
chance or prospect which the publishers had of-having their
books approved by the Government, on the other hand the
Government had the undisputed right to adopt any method of
selection they liked and if they ultimately decided that
after approving the text books they would purchase the
copyright in them from the authors and others provided the
latter were willing to transfer the same to the Government
on certain terms, we fail to see what right of the
publishers to carry on their trade or business is affected
by it. Nobody is taking away the publishers’ right to print
and publish any books they like and to offer them for sale
but if they have no right that their books should be
approved as text books by the Government it is immaterial so
far as they are concerned whether the Government approves of
text books submitted by other persons who are willing to
sell their copyrights in the books to them, or choose to
engage authors for the purpose of preparing the text books
which they take up on themselves to print
31
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and publish. We are unable to appreciate the argument of
Mr. Pathak that the Government while exercising their
undoubted right of approval cannot attach to it a condition
which has no bearing on the purpose for which the approval
is made. We fail to see how the petitioners’ position is in
any way improved thereby. The action of the Government may
be good or bad. It may be criticised and condemned in the
Houses of the Legislature or outside but this does not
amount to an infraction of the fundamental right guaranteed
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by article 19 (1) (g) of the Constitution.
As in our view the petitioners have no fundamental right in
the present case which can be said to have been infringed by
the action of the Government, the petition is bound to fail
on that ground. This being the position, the other two
points raised by Mr. Pathak do not require consideration at
all. As the petitioners have no fundamental right under
article 19 (1) (g) of the Constitution, the question whether
the Government could establish a monopoly without any
legislation under article 19(6) of the Constitution is
altogether immaterial. Again a mere chance or prospect of
having particular customers cannot be said to be a right to
property or to any interest in an undertaking within the
meaning of article 31(2) of the Constitution and no question
of payment of compensation can arise because the petitioners
have been deprived of the same. The result is that the
petition is dismissed with costs.
PETITIONS NOS. 71 TO 77 AND 85 OF 1955.
MUKHERJEA C. J.-These 8 petitions under article 32 of the
Constitution raise identically the same points for
consideration as are involved in Petition No. 652 of 1954
just disposed of. The petitioners in these cases also
purport to be printers, publishers and sellers of text-books
for various classes in the schools of Punjab and they
complain of infraction of their fundamental rights under
article 19 (1) (g) of the Constitution by reason of the
various notifications issued by the State of Punjab in
pursuance of their policy
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of nationalisation of text books. The learned counsel
appearing in these cases have adopted in their entirety the
arguments that have been advanced by Mr. Pathak in Petition
No. 652 of 1954 and no fresh or additional argument has been
put forward by any one of them. This being the position the
decision in Petition No. 652 of 1954 will govern these
petitions also and they will stand dismissed but we would
make no order as to costs.