Rai Sahib Ram Jawaya Kapurand ... vs The State Of Punjab(And Connected ... on 22 April, 1955

    PETITIONER:

RAI SAHIB RAM JAWAYA KAPURAND OTHERS

 Vs.

RESPONDENT:

THE STATE OF PUNJAB(AND CONNECTED PETITIONS).

DATE OF JUDGMENT:

22/04/1955

BENCH:

ACT:

       Constitution of India, Arts. 19(1)(g), 73 and 162-Printing, publishing
and selling of text books for recognised schools in the State of Punjab taken by
the State Government exclusively in their own hands-Whether any fundamental
right of the private publishers who were ousted from the business, contravened-
Art. 19(1)(g) of the Constitution-Arts. 73 and 162-Whether contain any
definition of executive function- Union executive or the State executive-Whether
legislation by Parliament or State Legislature on certain items ap- pertaining
to their respective lists, a condition precedent to the Union or State executive
functioning in respect to them.

HEADNOTE:

       For a long period of time prior to 1950 the text books for recognised
schools in the State of Punjab were prepared by private publishers with their
own money and under their own arrangements and they were submitted for the
approval of the Government. The Government approved some books on each subject
as alternative text books, leaving it to the discretion of the Head Masters of
different schools to select any alternative book on each subject. In May 1950
books on certain subjects (like agriculture, history, social studies, etc.) were
prepared and published by the Government themselves without inviting offers from
private publishers. With respect to other subjects, offers were invited from
"publishers and authors". The alternative method was given up and only one text
book on ,each subject was selected. The Government charged as royalty 5% on the
sale price of all the approved text books. In 1952 a notification was issued by
the Government which omitted the word "Publishers" altogether and invited only
"authors and others" to submit books for approval by the Government. The
"authors and others" whose books were approved, had to enter into an agreement
in the form prescribed by the Government the principal term of the agreement was
that the copyright in these books would vest absolutely in Government and the
authors and others" would get a royalty of 5% on the sale price of the text
books. It was contended that-the publishing, printing and selling of text books
was thus taken by the Government exclusively into its own hands and the private
publishers were altogether ousted from the business. The petitioners, who
purport to carry on the business of preparing, printing, publishing and selling
text books for recognised schools in the Punjab, pro29 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.

JUDGMENT:

       ORIGINAL JURISDICTION: Petitions Nos. 652 of 1954 and 71 to 77 and 85 of
1955.

       Under Article 32 of the Constitution for the enforcement of fundamental
rights.

       G. S. Pathak, (P. N. Mehta and G. C. Mathur, with him) for the
petitioners in Petition No. 652 of 1.954. P. N. ~Mehta and G. ~0. ~Mathur, for
the petitioners in Petitions Nos. 71 to 77 and 85 of 1955.

       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 con- dition 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 pub- lishers, could also submit books for approval and if any of
their books were approved, they had to make arrangements for publishing the same
and usually they used to select some one of the publishers already on the line
to do the work. This procedure, which was in vogue since 1905, was altered in
material particulars on and from May 1950. By certain resolutions of the
Government passed on or about that time, the whole of the territory of Punjab,
as it remained in the Indian Union after partition, was divided into three
Zones. The text books on certain subjects like agriculture, history, social
studies, etc. for all the zones were prepared and published by the Government
without inviting them from the publishers. With respect to the remaining
subjects, offers were still invited from "publishers and authors" but the
alternative system was given up and only one text book on each subject for each
class in a particular zone was selected. Another change introduced at this time
was that the Government charged, as royalty, 5% on the sale price of all the

       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 Govern- ment of India by
virtue of any treaty or any agreement. The proviso engrafted on clause (1)
further lays down that although with regard to the matters in the Concurrent
List the executive authority shall be ordinarily left to the State it would be
open to the Parliament to provide that in exceptional cases the executive power
of the Union shall extend to these matters also. Neither of these articles
contain any definition as to what the executive function is and what activities
would legitimately come within its scope. They are concerned primarily with the
distri- 232

       bution of the executive power between the Union on the one hand and the
States on the other. They do not mean, as Mr. Pathak seems to suggest, that it
is only when the Parliament or the State Legislature has legislated on certain
items appertaining to their respective lists, that the Union or the State
executive, as the case may be, can proceed to function in respect to them. On
the other hand, the language of article 162 clearly indicates that the powers of
the State executive do extend to matters upon which the State Legislature is
competent to legislate and are not con- fined to matters over which legislation
has been passed already. The same principle underlies article 73 of the
Constitution. These provisions of the Constitution therefore do not lend any
support to Mr. Pathak's contention.

       The Australian cases upon which reliance has been placed by the learned
counsel do not, in our opinion, appear to be of much help either. In the
first(1) of these cases, the executive Government of the Commonwealth during the
continuance of the war, entered into a number of agreements with a company which
was engaged in the manufacture and sale of wool-tops. The agreements were of
different types. By one class of agreements, the Commonwealth Government gave
consent to the sale of wool-tops by the company in return for a share of the
-profits of the transactions (called by the parties "a licence fee"). Another
class provided that the business of manufacturing wool-tops should be carried on
by the company as agents for the Commonwealth in consideration of the company
receiving an annual sum from the Commonwealth. The rest of the agreements were a
combination of these two varieties. It was held by a Full Bench of the High
Court that apart from any authority conferred by an Act of Parliament or by
regulations thereunder, the executive Government of the Commonwealth had no
power to make or ratify any of these agreements. The decision, it may be
noticed, was based substantially upon the provision of section 61 of the
Australian Constitution which is worded as follows:

       (1) The Commtmonwwealth and the Central Wool Committee v. The Colonial
Combining, Spinning and Weaving Co. Ltd., 31 C.L.R. 421.

       233

       "The executive power of the Commonwealth is vested in the Queen and is
exercised by the Governor-General as the Queen's representative and extends to
the execution and maintenance of the Constitution and of the laws of the
Commonwealth",

       In addition to this, the King could assign other functions and powers to
the Governor-General under section 2 but in this particular case no assignment
of any additional powers was alleged or proved. The court held that the
agreements were not directly authorised by the Parliament or under the
provisions of any statute and as they were not for the execution and maintenance
of the Constitution they must be held to be void. Isacs, J., in his judgment,
dealt elabo- rately with the two types of agreements and held that the
agreements, so far as they purported to bind the company to pay to the
Government money, as the price of consents, amounted to the imposition of a tax
and were void without the authority of Parliament. The other kind of agreements
which purported to bind the Government to pay to the company a remuneration for
manufacturing wool-tops was held to be an appropriation of public revenue and
being without legislative authority was also void.

       It will be apparent that none of the principles indicated above could
have any application to the circumstances of the present case. There is no
provision in our Constitution corresponding to section 61 of the Australian Act.
The Government has not imposed anything like taxation or licence fee in the
present case nor have we been told that the appropriation of public revenue
involved in the so-called business in text books carried on by the Government
has not been sanctioned by the legislature by proper Appropriation Acts.

       The other case(1) is of an altogether different character and arose in
the following way. The Commonwealth Government had established a clothing
factory in Melbourne for the purpose of making naval and military uniforms for
the- defence forces and

       (1) Vide Attorney-General for Victoria v. The Commonwealth 52 C.L.R 533

       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 there-
fore was not per se outside the ambit of the executive authority of the State.
Sapru, J. held that the power to run a Government bus service was incidental to
the power of acquiring property which was expressly conferred by article 298 of
the Constitution. Mootham and Wanchoo, JJ., who delivered a common judgment,
were also of the opinion that there was no need for a specific legislative
enactment to enable a State Government to run a bus service. In the opinion of
these learned Judges an act would be within the executive power of the State if
it is not an act which has been assigned by the Constitution of India to other
authorities or bodies and is not contrary to the provisions of any law and does
not encroach upon the legal rights of any member of the public. Agarwala, J.
dissented from the majority view and held that the State Government had no power
to run a bus service in the absence of an Act of the 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
func- tions; and as the 'Ministers constituting the Cabinet are presumably
agreed on fundamentals and act on the principle of collective responsibility,
the most important questions of policy are all formulated by them.

       Suppose now that the Ministry or the executive Government of a State
formulates a particular policy in furtherance of which they want to start a
trade or business. Is it necessary that there must be a specific legislation
legalising such trade activities before they could be embarked upon? We cannot
say that such legislation is always necessary. If the trade or business involves
expenditure of funds, it is certainly required that Parliament should authorise
such expenditure either directly or under the provisions of a statute. What is
generally done in such cases is, that the sums required for carrying on the
business are entered in the annual financial statement which the Ministry has to
lay before the House or Houses of Legislature in respect of every financial year
under article 202 of the Constitution. So much of the esti- mates as relate to
expenditure other than those charged on the consolidated fund are submitted in
the form of demands for grants to the legislature and the legislature has the
power to assent or refuse to assent to any such demand or assent to a demand
subject to reduc-

       238

       tion of the amount (article 203). After the grant is sanctioned, an
Appropriation Bill is introduced to provide for the appropriation out of the
consolidated fund of the State of all moneys required to meet the grants thus
made by the Assembly (article 204). As soon as the Appropriation Act is passed,
the expenditure made under the heads covered by it would be deemed to be
properly authorised by law under article 266(3) of the Constitution.

       It may be, as Mr. Pathak contends, that the Appropriation Acts are no
substitute for specific legislation and that they validate only the expenses out
of the consolidated funds for the particular years for which they are passed;
but nothing more than that may be necessary for carrying on of the trade or
business. Under article 266(3) of the Constitution no moneys out of the
consolidated funds of India or the consolidated fund of a State shall be
appropriated except in accordance with law and for the purposes and in the
manner provided in this Constitution. The expression "law" here obviously
includes the Appro- priation Acts. It is true that the Appropriation Acts cannot
be said to give a direct legislative sanction to the trade activities
themselves. But SO long as the trade activities are carried on in pursuance of
the policy which the executive Government has formulated with the tacit support
of the majority in, the legislature, no objection on the score of their not
being sanctioned by specific legislative provision can possibly be raised.
Objections could be raised only in regard to the expenditure of public funds for
carrying on of the trade or business and to these the Appropriation Acts would
afford a complete answer. Specific legislation may indeed be necessary if the
Government require certain powers in addition to what they possess under
ordinary law in order to carry on the particular trade or business. Thus when it
is necessary to encroach upon private rights in order to enable the Government
to carry on their business, a specific legislation sanctioning such course would
have to be passed. 239

       In the present case it is not disputed that the entire expenses necessary
for carrying on the business of printing and publishing the text books for
recognised schools in Punjab were estimated and shown in the annual financial
statement and that the demands for grants, which were made under different
heads, were sanctioned by the State Legislature and due Appropriation Acts were
passed. For the purpose of carrying on the business the Government do not
require any additional powers and whatever is necessary for their purpose, they
can have by entering into contracts with authors and other people. This power of
contract is expressly vested in the Government under article 298 of the
Constitution. In these circumstances, we are unable to agree with Mr. Pathak
that the carrying on of the business of printing and publishing text books was
beyond the competence of the executive Government without a specific legislation
sanctioning such course.

       These discussions however are to some extent academic and are not
sufficient by themselves to dispose of the petitioners' case. As we have said
already, -the executive Government are bound to conform not only to the law of
the land but also to the provisions of the Constitution. The Indian Constitution
is a written Constitution and even the legislature cannot override the
fundamental rights guaranteed by it to the citizens. Consequently, even if the
acts of the executive are deemed to be sanctioned by the legislature, yet they
can be declared to be void and inoperative if they infringe any of the
fundamental rights of the petitioners guaranteed under Part III of the Consti-
tution. On the other hand, even if the acts of the executive are illegal in the
sense that they are not warranted by law, but no fundamental rights of the
petitioners have been infringed thereby, the latter would obviously have no
right to complain under article 32 of the Constitution though they may have
remedies elsewhere if other heads of rights are infringed. The material question
for consideration therefore is: What fundamental rights of the petitioners, if
any, have been violated by the notifications

       240

       and acts of the executive Government of Punjab undertaken by them in
furtherance of their policy of nationalisation of the text books for the school
students?

       The petitioners claim fundamental right under article 19(1)(g) of the
Constitution which guarantees, inter alia, to all persons the right to carry on
any trade or business. The business which the petitioners have been carrying on
is that of printing and publishing books for sale including text books used in
the primary and middle classes of the schools in Punjab. Ordinarily it is for
the school authorities to prescribe the text books that are to be used by the
students and if these text books are available in the market the pupils can
purchase them from any book-seller they like. There is no fundamental right in
the publishers that any of the books printed and published by them should be
prescribed as text books by the school authorities or if they are once accepted
as text books they cannot be stopped or discontinued in future. With regard to
the schools which are recognised by the Government the position of the pub-
lishers is still worse. The recognised schools receive aids of various kinds
from the Government including grants for the maintenance of the institutions,
for equipment, furniture, scholarships and other things and the pupils of the
recognised schools are admitted to the school final examinations at lower rates
of fees than those demanded from the students of non-recognised schools. Under
the school code, one of the main conditions upon which recognition is granted by
Government is that the school authorities must use as text books only those
which are prescribed or autho- rised by the Government. So far therefore as the
recognised schools are concerned-and we are concerned only with these schools in
the present case the choice of text books rests entirely with the Government and
it is for the Government to decide in which way the selection of these text
books is to be made. The procedure hitherto followed was that the Government
used to invite publishers and authors to submit their books for examination and
approval by

       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 Govern- ment. They had no right to insist on any of their
books being accepted as text books. So the utmost that could be said is that
there was merely a chance or prospect of any or some of their books being
approved as text books by the Government. Such chances are incidental to all
trades and businesses and there is no fundamental right guaranteeing them. A
trader might be lucky in securing a particular market for his goods but if he
loses that field because the particular customers for some reason or other do
not choose to buy goods from him, it is not open to him to say that it was his
fundamental right to have his old customers for ever. On the one hand,
therefore, there was nothing but a chance or prospect which the publishers had
of-having their books approved by the Government, on the other hand the
Government had the undisputed right to adopt any method of selection they liked
and if they ultimately decided that after approving the text books they would
purchase the copyright in them from the authors and others provided the latter
were willing to transfer the same to the Government on certain terms, we fail to
see what right of the publishers to carry on their trade or business is affected
by it. Nobody is taking away the publishers' right to print and publish any
books they like and to offer them for sale but if they have no right that their
books should be approved as text books by the Government it is immaterial so far
as they are concerned whether the Government approves of text books submitted by
other persons who are willing to sell their copyrights in the books to them, or
choose to engage authors for the purpose of preparing the text books which they
take up on themselves to print

       31

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       and publish. We are unable to appreciate the argument of Mr. Pathak that
the Government while exercising their undoubted right of approval cannot attach
to it a condition which has no bearing on the purpose for which the approval is
made. We fail to see how the petitioners' position is in any way improved
thereby. The action of the Government may be good or bad. It may be criticised
and condemned in the Houses of the Legislature or outside but this does not
amount to an infraction of the fundamental right guaranteed by article 19 (1)
(g) of the Constitution.

       As in our view the petitioners have no fundamental right in the present
case which can be said to have been infringed by the action of the Government,
the petition is bound to fail on that ground. This being the position, the other
two points raised by Mr. Pathak do not require consideration at all. As the
petitioners have no fundamental right under article 19 (1) (g) of the
Constitution, the question whether the Government could establish a monopoly
without any legislation under article 19(6) of the Constitution is altogether
immaterial. Again a mere chance or prospect of having particular customers
cannot be said to be a right to property or to any interest in an undertaking
within the meaning of article 31(2) of the Constitution and no question of
payment of compensation can arise because the petitioners have been deprived of
the same. The result is that the petition is dismissed with costs.

       PETITIONS NOS. 71 TO 77 AND 85 OF 1955.

       MUKHERJEA C. J.-These 8 petitions under article 32 of the Constitution
raise identically the same points for consideration as are involved in Petition
No. 652 of 1954 just disposed of. The petitioners in these cases also purport to
be printers, publishers and sellers of text-books for various classes in the
schools of Punjab and they complain of infraction of their fundamental rights
under article 19 (1) (g) of the Constitution by reason of the various
notifications issued by the State of Punjab in pursuance of their policy

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       of nationalisation of text books. The learned counsel appearing in these
cases have adopted in their entirety the arguments that have been advanced by
Mr. Pathak in Petition No. 652 of 1954 and no fresh or additional argument has
been put forward by any one of them. This being the position the decision in
Petition No. 652 of 1954 will govern these petitions also and they will stand
dismissed but we would make no order as to costs.