Rai Sahib Ram Jawaya Kapur & Ors Vs.
The State Of Punjab [1955] INSC 34 (22 April 1955)
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 appertaining 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 226 ferred the present petition under Art. 32 of
the Constitution praying for writs of mandamus directing the 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.
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.
227 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 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 condition precedent to
the granting of recognition to a 228 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 publishers, 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 229 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 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 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 Government 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 distribution 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 confined 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 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 there under,
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 Commission wealth 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. Peace, J., in his judgment, dealt elaborately 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 30 234 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 therefore 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 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
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 functions; 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 estimates 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
reduction 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 Appropriation 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 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 Constitution. 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 publishers is still worse. The recognised schools receive aids
of various kinds from the Government including grants for 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 authorised 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 241 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 Government. 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 31 242 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 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 243 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.
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