'

'

2 S.C.R. SUPREME COURT REPORTS

RAI SAHIB RAM JAWAYA KAPUR

AND OTHERS

v.

THE STATE OF PUNJAB

(AND CONNECTED PETITIONS).

225

[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, a condition

p1·ecedent to the Union or State execu.tive functioning in respect to

them.

For a 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 a 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

226 SUPREME COURT REPORTS [ 1955]

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.

_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.

A mere chance or prospect

of having particular customers

can­

not be said to be a 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.

2 S.C.R. SUPREME COURT REPORTS 227

S. M. Sikri, Advocate-General for the State of 1955

Punjab (Jindra Lal and P. G. Gokhafe, with him) for Rai Sahib Ram

the respondent in all petitions. Jawaya Kapur

and otlters

1955. April 12. The following Judgments were The Srar/~J Punja/>

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, 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 a 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 a con­

dition precedent to the granting of recognition to a

228 SUPREME COURT REPORTS LI 955]

1955 school. For a long period of time prior to 1950, the

Rai Sahib Ram method adopted by the Government for selection and

Jawaya Kapur approval of text books for recognised schools was

and others

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 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 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 a 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

2 S.C.R. SUPREME COURT REPORTS 229

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 a certain royalty The Start:.. of Punjab

upon the sale proceeds. MukhePJea c.J.

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 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 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 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 a three-fold

character.

It is contended in the first place that the

executive Government of a

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

230 SUPREM.E COURT REPORTS [1955]

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 a monopoly

Mukherfta C.J. in its favour in respect of a particular trade or busi­

ness, that could be done not by any executive act but

by means of a 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 a

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 a 1

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 Con­

stitution clearly recognises a 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 a 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. SUPREME COURT REPORTS 231

provision in regard to the executive powers of a 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 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 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-

232 SUPREME COURT REPORTS L1955]

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 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 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 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) 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. SUPREME COURT REPORTS 233

"The executive power of the Commonwealth is 1955

vested in the Queen and is exercised by the Governor-Jr#. Sahib Ram

General as the Queen's representative and extends to Ja-;;:z~a

0

~":,.~'

the execution and maintenance of the Constitution v.

and of the laws of the Commonwealth". The State of Punjab

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 a

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 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

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 a 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.

Mukilerjell C.J.

234 SUPREME COURT REPORTS [1955]

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. A 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 a 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.

A question very similar to that in the present case

did arise for consideration before a 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 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 Govern­

ment 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:

(I) A.LR. 1951 Allahabad 257.

,

..

2 S.C.R. SUPREME COURT REPORTS 235

It prnst include all powers that may be needed to 1

9ss

carry into effect the aims and objects of the Constitu-

Rrsi,Sa/tib Ram

tion. It must mean more than merely executing the Jal'!lldya K,af'Jur

1 A d

. h

Ch" f J

· h S 1 °

11

ott1er.<

aws. ccor mg to t e 1e ust1ce t. e tate ms v.

a right to hold and manage its own property and The $.tare of P1111jab

carry on such trade or business as a citizen has the At1fklterjea c..1.

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

articl~ 298 of the Constitution. Moo-

tham and Wanchoo, JJ., who delivered a commoi1

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 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.

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

236 SUPREME COURT REPORTS [I 955]

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 a

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 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

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 a 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 a formal or constitutional

2 S.C.R. SUPREME COURT REPORTS 237

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

01 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, 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

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 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 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 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

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 a demand subject to reduc-

31-s

SCIIND.'82

238 SUPREME COURT REPORTS. [1955]

19

55 tion of the amount (article 203). After the grant is

Rni snhib Ram sanctioned, an Appropriation Bill is introduced to

'

0

"~Y:rf."P!!' provide for the appropriation out of the consolidated

011

•• '"' 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 a 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 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 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 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 encroach upon private rights

in order

to enable the Government to carrv on their

busine~s.

a specific legislation sanctioning s~1ch course would

have to be passed.

"·

2 S.C.R. SUPREME COURT REPORTS 239

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" 1'"P"'

!lnzi 11thers

nised schools in Punjab were estimated and shown in v. .

the annual financial statement and that the demands Tire St!lte of P1111i!lh

for grants, which were made under different heads, M11kherJe11 c .. 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 a specific legisla-

tion sanctioning such course.

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 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 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

240 SUPREME COURT REPORTS _ (1955]

1

9ss

and acts of the executive Government of Punjab

&1 Silltib Ram undertaken by them in furtherance of their policy of

Jawaya /(Jlpur nationalisation of the text books for the school

and '!/.h"'s students?

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. SUPREME COURT REPORTS 241

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 v .. rp . h

· • e tllle o, 11111a

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 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 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

242 SUPREME COURT REPORTS [1955]

1955 and publish. We are unable to appreciate the argu-

Rui Sahib Ram ment of Mr. Pathak that the Government while cxer­

Jawayu Kapur cising their undoubted right of approval calmot attach

und oth~rs ._,

v. to it a 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 a monopoly without any

lc~islation under article 19(6) of the Constitution is

allogclher imnrntcrial. Again a mere chance or pros­

pect of having particular customers cannot be said

to be a 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

2 s.c.R. SUPREME COURT REPORTS 243

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