RAI SAHIB RAM JAWAYA KAPUR AND OTHERS versus THE STATE OF PUNJAB

RAI SAHIB RAM JAWAYA KAPUR AND OTHERS

THE STATE OF PUNJAB (AND CONNECTED PETITIONS).

[MUKHERJEA, C.J., VIVIAN BOSE, JAGANNADHADAS VENKATARAMA AYYAR and IMAM JJ.]

Constitutio11 of India, Arts. 19(/)(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 pub-lishers 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 ott certain items appertaining to their respective lists, condition p1·ecedent to the Union or State execu.tive functioning in respect to them.

For long period of time prior to 1950 the text books for re-cognised 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 difk-rl.'nt 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 them-~elves without inviting offers from private publishers. With respect to other subjects, -0ffers 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 notifica-tion was issued by the Government which omitted the word "pub-lishers" altogether and invited only "authors and others" to submit books for approval by the G<>vemment. 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 agree-ment was that tho copyright in these books would vest absolutely in Government and the 'authors and others' would get or 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 pub-lishers were altogether ousted from the business. The petitioners, who purport to carry on the business of preparing, printing, publish-ing and selling text hooks for recognised schools in the Punjab, pre-

1955 April 12

1955 ferred the present petition under Art. 32 of the Constitution praying Rai Sahib Rum for writs of mandamus directing the Punjab Government to with-Jawaya Kapnr draw the notifications of 1950 and 1952 on the ground that they a11d others contravened the fundamental rights of the petitioners guaranteed v. under the Constitution.

Jawaya Kapnr a11d others v. _The· Stale of Punj11b

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(l)(g) of the Constitution. Jn the present case no fundamental rights of the petitioners were violated by the notifi-cations and the acts of the executive Government of the Punjah done by them in furtherance of their policy of nationalisation of the text books for the school students.

mere chance or prospect of having particular customers can-not be said to be right to property or to any interest or under-taking 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 pri· marily with the distribution of executive power between the Union on the one band 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. I 62 dearly indicates that the powers of the State executh·e do extend to matters upon which the State Legisla-ture is competent to legislate and are not confined to matters over which legislation has been passed already. The same principle under-lies Art. 73 of the Constitution.

1"hc Comrnottwealth and the Central Wool Commitee 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 v. The Government of the State of Uttar Pradesh (A.I.R. 1951 Allahabad 257), referted to.

ORIGINAL .JURISDICTION: Petitions Nos. 652 of

1954 and 71to77 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 1954.

P.N. Mehta and G. C. Mathur, for the petitioners in Petitions Nos. 71 to 77 and 85 of 1955.

S. M. Sikri, Advocate-General for the State of

Punjab (Jindra Lal and P. G. Gokhafe, with him) for Rai Sahib Ram the respondent in all petitions. Jawaya Kapur

Jawaya Kapur and otlters

1955. April 12. delivered.

The following Judgments were The Srar/~J Punja/>

PETITION NO. 652 OF 1954.

MuKHERJEA C. J.-This is petition under article 32 of the Constitution, preferred by six persons, who purport to carry on the business of preparing, print-ing, publishing and selling text books for different classes in the schools of Punjab, particularly for the pri-mary 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 series of notifications since 1950 regarding the printing, publication and sale of these books which have not only placed unwarrant-able 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 Constitutions 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 peti-tioners pray for writs jn the nature of mandamus dir-ecting the Punjab Government to withdraw the notifi-cations 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 cer-tain relevant facts. ' In the State of Punjab, all recog-nised schools have got to follow the course of studies approved by the Education Department of the Gov-ernment and the use, by the pupils, of the text books prescribed or authorised by the Department is con-dition precedent to the granting of recognition to

1955 school. For long period of time prior to 1950, the Rai Sahib Ram method adopted by the Government for selection and Jawaya Kapur and others approval of text books for recognised schools was v. commonly known as the alternative method and the The Stare of P1111jah procedure followed was shortly this: Books on relevant M11kherjea c.1. 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 IO 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 cif the alternative books on 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 diff-erent 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 resolution.s 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 particular zone was selected. Another change introduced at this time was that the Government charged, as royalty, S % on the sale price of all the

approved text books. The result therefore was that 1955 the Government at this time practically took upon RaiSahi/J Ram themselves the monopoly of publishing the text books 1m;:,[0]/ftf'::' on some of the subjects and with regard to the rest v. also, they reserved for themselves certain royalty The Start:.. of Punjab upon the sale proceeds. MukhePJea c.J.

Changes of far more drastic character however were introduced in the year 1952 by notification of the Education Department issued on the 9th of August 1952 and it is against this notification that the com-plaints 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, had to enter into agreements in the form prescribed by the Government and the principal terms of the agree-ment were that the copyright in these books would vest absolutely in the Government and the "authors and others" would only get 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 Govern-ment 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 notifi-cations on the ground that they contravene the funda-mental rights of the petitioners guaranteed under the Constitution.

The contentions raised by Mr. Pathak, who ap-

peared in support of the petitioners; are of three-fold character. It is contended in the first place that the executive Government of State is wholly incompe-tent. without any legislative sanction, to engage in any trade or business activity and that the acts of 30 8 SCT/ND, ~2

J955 the Government in carrying out their policy of estab-Roi Sahib Itnnr lishing monopoly in the business of printing and pub-1•::;;• .~:::_:-lishi'.1g _te~t ~ooks fo_r school s~udents is wholly. wit~-v. out Junsd1ct10n and 1Hegal. His second contention 1s, Th• State of 1'unfab that assuming that the State could create monopoly Mukherfta C.J. in its favour in respect of particular trade or busi-ness, that could be done not by any executive act but by means of proper legislation which should con-form to the requirements of article 19(6) of the Con-stitution. 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 competi-tion with private agencies without the sanction of the legislature. It is not argued that the functions of modern State like the police States of old are confined to mere collection of taxes or maintenance of laws and protection of the realrri from external or intern 1 enemies. 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 Con-stitution clearly recognises division of governmental functions into three categories, viz., the legislative, the judicial and the executive, the function of the exe-cutive cannot but be to executive the laws passed by the legislature or to supervise the enforcement of the same. The legislature must first enact measure which the executive can then carry out. The learned counsel has, in support of this contention, placed con-siderable reliance upon articles 73 and 162 of our Constitution and also upon certain decided autho-rities cif the Australian High Court to which we shall. presently refer.

Article 73 of the Constitution reliltes to the exe-cutive powers of the Union, while the corresponding

2 S.C.R.

provision in regard to the executive powers of State 1955 is contained in article 162. The provisions of these. Rai Sahib Ram articles are analogous to those of sections 8 and 49(2) Jawaya Kapur respectively of the Government of India Act, 1935 and :.thers and laid down the rule of distribution of executive The.State of Pmuab powers between the Union and the States, following Mukhtriea c.J. the same analogy as is provided in regard to the dis-tribution of legislative powers between them, Arti-cle 162, with which we are directly concerned in this case, lays down:

"Subject to the provisions of this Constitution, the executive power of 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 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 0T by any law made by Parliament upon the Union or autho-rities thereof".

Thus under this article the executive authority of the State is exclusive in respect to matters enu.rnerated 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, autho-rity and jurisdiction as are exercisable by the Govern-ment of India by virtue of any treaty or any agree-ment. 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 Clefinition as to what the executive function is and what activities would legitimately come within its scope. They are concerned primarily with the distri-

1955 bution of the executive power between the Union on Rai Sahib Ram the one hand and the States on the other. They do Jawaya Kapur not mean, as Mr. Pathak seems to suggest, that it is aud others v. only when the Parliament or the State Le~islature has The State of PunJab legislated on certain items appertaining to their res-Muklrerfea c..r. pective 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 Con-stitution therefore do not lend any support to Mr. .Pathak"s contention.

The Australian cases upon which reliance has been

placed by the learned counsel do not, in our opinion, appear to be of much help either. ln the first(') of these cases, the executive Government of the Common-wealth, during the continuance of the war, entered into number of agreements with 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 con-sent 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 Com-monwealth in consideration of the company receiving an annual sum from the Commonwealth. The rest of the agreements were combination of these two varieties. It was held by 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) Tlw_ C111111110111i•erif1h nnd the Cl'11fral i-v,,o/ Cm11111ii1<•(' v. Th,• Cnlnuia/ Co111hi11g. Spil111ii1g c111tf W.e111'i11g Co.Ltd., 31 C.l..R. -121.

2 ~.C.R.

"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".

Jr#. Sahib Ram Ja-;;:z~a 0~":,.~' v.

The State of Punjab Mukilerjell C.J.

In addition to this, the King could assign other func-tions and powers to the Governor-General under sec-tion 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 tax and were void without the authority of Parlia-ment. The other kind of agreements which purported to bind the Government to pay to the company 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 cu-cumstances 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 Appr.opriation Acts.

The other casc(1) is of an altogether different character and arose in th«: following way. The Com-monwealth Government had established clothini! factory in Melbourne for the purpose of making nav;i and military uniforms for the defence forces and (1) .Vid·" Attorney General for Jlklqf"1 v. The Commo11weal1h, 52 C'.L.R. 533.

1955 postal employees. In times of peace the operations of Rui S'lfrib Ram the factory included the supply of uniforms for other Ja:~~"o5::':: departments of the Commonwealth and for employees v. in various public utility services. The Governor-T/re S1ute of J'uhiab General deemed such peace-time operations of the Mukherjea c,J. factory necessary for the efficient defence of the Com-monwealth inasmuch as the maintenance intact of the trained complement of the factory wou Id assist in meeting wartime demands. question arose as to whether operations of the factory for such pur-poses-in peace-time were authorised by the Defence Act. The majority of the court answered the ques-tion in the affirmative. Starke, J. delivered dissent-ing 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· main-tenance of the Constitution and of t~e 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 Common-wealth 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.

question very similar to that in the present case did arise for consideration before Full Bench of the Allahabad High Court in Motila1 v. The Guvemment of the State of Uttar Pradesh('). The point c<invassed there was whether the Government of State has power under the Constitution to carry on the trade or business of running bus service in the absence of legislative enactment authorising the State Govern-ment to do so. Different views were expressed by different Judges on this question. Chief Justice Malik was of opinion that in written Constitution like ours the executive power may be such as is given to the executive or is implied, ancillary or inherent: (I) A.LR. 1951 Allahabad 257.It prnst include all powers that may be needed to carry into effect the aims and objects of the Constitu-tion. It must mean more than merely executing the Ch" J · S 1 1 aws. ccor mg to t d[. ]1e ust1ce t. tate ms right to hold and manage its own property and carry on such trade or business as 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 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 Government bus service was incidental to the power of acquiring property which was expressly conferred by articl~ 298 of the Constitution. Moo-tham and Wanchoo, JJ., who delivered commoi1 judgment, were also of the opinion that there was no need for specific legislative enactment to enable State Government to run 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 bus service in the absence of an Act of the legislature authorising the State to do so. The opinion of Ag:ar-wala, J. undoubtedly supports the contention of Mr. Pathak but it appears to us to be too narrow and un-supportable.

Rrsi,Sa/tib Ram Jal'!lldya °[11 ]ott1er.< K,af'Jur v. $.tare of of P1111jab At1fklterjea c..1.

own property and The $.tare of of P1111jab

It may not be possible to frame an exhaustive de-finition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legisla-tive 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 sufficicntlv difTerentiated and consequently it can very well be said that our Constitution does not contcmplrite

1955 assumption, by one organ or part of the State, of Rai Sahib Ram functions that essentially belong to another. The Jawa.va Kqpur, executive indeed can exercise the powers of depart-and others v, mental or subordinate legislation when such powers The State of Pnnjah.are delegated to it by the legislature. It can also, Mukherjeb CJ. when so empowered, exercise J'udicial functions in limited way. The executive overnment; however. can never go against the provisions of the Constitu-tion 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 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 Gt,vernment

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 struc-ture, is modelled on the British Parliamentary system where the executive is deemed to have the primarv responsibility for the formulation of governmental policy and its transmission into law though the con-dition 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 promo-tion of social and economic welfare. the diredion of foreign policy, in fact the carrying on or supervision of the general administration of the State.Jn 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 execut.ive power of the Union is vested in the President but under article 75 there is to be Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions. The Presi-dent has thus been made formal or constitutional

head of the executive and the real executive powers 1955 are vested in the Ministers or the Cabinet. The same Roi Sa/iJ'b Ram provisions obtain in regard to the Government of Jawa~a~~apur States; the Governor or the Rajpramukh, as the case an v. ers may be. occupies the position of the head of the exe- The State [0]1 Pun/ab cutive in the State but it is virtually the council of Mukhe,Jea CJ. 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 Ministers consisting, as it does, of the members of the legislature is. like the British Cabinet, "a hyphen which joins, buckle which fastens the legislative part of the State to the executive part". The Cabinet enjoying, as it does, 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 an·d act on the .principle of collective responsibility, the most im-portant questions of policy are all formulated by them.

Suppose now that the Ministry or the executive Government of State formulates particular policy in furtherance of which they want to start trade or business. Is it necessary that there must be specific legislation legalising such trade activities before they could be em barked upon? We cannot say that such legislation is always necessary. If the trade or busi-ness involves expenditure of funds, it is certainly re-quired that Parliament should authorise such expendi-ture either directly or under the provisions of 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 financia} year under article 202 of the Constitution. So much of the esti-nrntes 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 legisla-ture has the power to assent or refuse to assent to any such demand or assent to demand subject to reduc-

1955 tion of the amount (article 203). After the grant is Rni snhib Ram sanctioned, an Appropriation Bill is introduced to '[0]011 "~Y:rf."P!!' provide for the appropriation out of the consolidated •• '"' fund of the State of all moneys required to meet the TheSror• [0]! l'mriab grants thus made by the Assembly (article 204). As M11kh-;:;a c,1. soon as the Appropriation Act is passed, the expendi-ture 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 Ap-propriation Acts are no substitute for specific legisla-tion 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 busi-ness. Under article 266(3) of the Constitution no moneys out of the consolidated funds of India or the consolidated fund of State shall be appropriated ex-cept 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 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 formu-lated 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 carry-ing on of the trade or business and to these the Appropriation Acts would afford 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 encroach upon private rights in order to enable the Government to carrv on their busine~s. specific legislation sanctioning s~1ch course would have to be passed.

2 S.C.R.

In the present case it is not disputed that the entire 1955 expenses necessary for carrying on the business of Rai Sahib R"m printing and publishing the text books for recog- '""'<lY" !lnzi 11thers 1'"P"' 1'"P"' nised schools in Punjab were estimated and shown in v. the annual financial statement and that the demands Tire St!lte of P1111i!lh of P1111i!lh P1111i!lh for grants, which were made under different heads, M11kherJe11 .. 1. .. 1. 1. were sanctioned by the State Legislature and due Appropriation Acts were passed. For the purpose of carrying on the business the Government do not re-quire any additional powers and whatever is neces-sary 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 cir-cumstances, 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 specific legisla-tion sanctioning such course.

Rai Sahib R"m for recog- '""'<lY" !lnzi 11thers 1'"P"' 1'"P"' v. . Tire St!lte of P1111i!lh of P1111i!lh P1111i!lh M11kherJe11 .. 1. .. 1. 1.

These discussions however are to some extent academic and are not sufficient by themselves to dis-pose 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 written Constitution and even the legislature cannot override the fundamental rights guaranteed by it to the citizens. Consequently, even if the acts· of the exe-cutive 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 in-fringed. The material question for consideration t hcrcfore is: What fundamental rights of the peti-tioners, if any, have been violated by the notifications

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?

&1 Silltib Ram Jawaya /(Jlpur and '!/.h"'s 1'11. State of Puf!iai Muklierjea c;.J.

The petitioners claim fundamental right under article l 9(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 publish-ing 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 pub-lishers 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 recog-nised 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 the maintenance of the institutions, for equipment, f.urniture, scholarships and other things and the pupils of the recognised sch0<9ls are admitted to the school final examinations at lower rates. of fees than those demanded from the students of non-recog-nised schools. Under the school code, one of the main conditions upon which recognition is granted by Government is that th~ schpol 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 con-cerned only with these schools in the present case-the choice of text books rests entirely with the Gov-ernment 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 t_he Government used to invite publishers and authors to submit their books for examination and approval by

2S.C.R.

1955 Rai.Sqhib R,,m Ja:~a /f;,"fr:' s tllle v o, .. rp rp 11111a . __.:._

the Education Department and after selection was 1955 made by the Government, the size, contents as . well Rai.Sqhib R,,m as the prices of the books were fixed and it was left Ja:~a /f;,"fr:' to. the publishers or authors · to print and publish• 11'h s tllle v o, .. rp rp them and off er them for sale to the pupils. So long __.:._ as this system was in vogue the only right which Mukherjea c.J. publishers, like the petitioners had, was to off er 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 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. trader might be lucky in securing 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 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 pro-vided 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 rusiness .is affeGted by it. Nobody is taking away the publi-shers' 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 l:'.re. 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

1955 and publish. We are unable to appreciate the argu-Rui Sahib Ram ment of Mr. Pathak that the Government while cxer-Jawayu und oth~rs Kapur cising their undoubted right of approval calmot attach ._, v. to it condition which has no bearing on the purpose Tile State of Punjab for which the approval is made. We fail to see how .uukl~rjell c.J. the petitioners' position is in any way improved thereby. The action of the Government may be gLJod or bad. It may be criticised and condemned in the Houses of the Legislature or outside but this do.es not amount to an infraction of the fundamental right guaranteed 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(l)(g) of the Constitution, the question whether the Government could establish monopoly without any lc~islation under article 19(6) of the Constitution is allogclher imnrntcrial. Again mere chance or pros-pect of having particular customers cannot be said to be right to property or to any interest in an under-taking within the meaning of article 3112) of the Con-stitution 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 conside.i:ation 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 J 9(l)(g) of the Con-stitunon hv reason of the various notifications issued by the Sta.te of Punjab in pursuance of their policy

of nationalisation of text books. The learned counsel 1955 appearing in these cases have adopted in their entirety Rai Sahib Ram the arguments that have been advanced by Mr. Pathak Jaw4ya Kapur amt others in Petition No. 652 of 1954 and no fresh or additional v. argument has been put forward by any one of them. The SfrJJe of Punjab This beiqg the position the decision in Petition M11k;;;;;;a c..1. No 652 of 1954 will govern these petitions also and they will stand dismissed but we would make no order as to costs.

SHIVA JUTE BALING LTD. v. HINDLEY & CO. LTD. [BIJAN KUMAR MuKHERJEA C.J. and SUDHI RANJAN DAS J.].

Appeal by Special Leave under Article 136 of the Constitution-Procedure to be followed on grant of such leave-Supreme Court Rules, rules 8, 9, 12 and 13 of Order Xlll--Circumstances warrant-ing action against an Appellant for rescinding special leave--Civil Procedure Code, Order XLV, rule 8-"Admission" of appeal to Supreme Cow·t-Applicability to appeals under article 136 of Consti-tution-Extent of Rule 9, Order XIII, of Supreme Court Rules-Rules and Practice of High Collrts-Formal motion in High Court for "admission" of appeal when special le1we was granted under article 136-Whether necessary--Calcutta High Court (Original Side) Rules, rule 9 of Chapter 32-Scope of.

By an order dated May 25, 1~54, the Supreme Court granted the petitioners in the case special leave to appeal against the judg-ment and order of the High Court at Caleutta. In accordance wi:h the order, the pt'titioners furnished the security amounts directed to be deposited within the time specified in the order. The Registrar of the High Court did not iSS\le. any notice of admission of appeal to be served by the Appellant's Solicitor on the Respondents as envisaged in rule 9 of Order. XIII, S.C.R. Nor did the Appellant fol-lowing the practice of the High Court, move that C.ourt for "admis-sion" of the appeal until January U, 1955. The Respondents first mo\·ed the High Co4rt complail).ing of d~ault on the part of the appellants in due prosecution of the appeal and latter moved the Supreme Court for action under rule 13 df Order XIII of the Supreme Court Rules. The application in the High Court was there-fore kept pending.

Held: Af~er the grant of $pecial leave under article 136, the Registrar of the Supreme Court transmits, in accordance with the