2 S.C.R.

SUPREME COURT REPORTS 225

RAI SAHIB RAM JAWAYA KAPUR 1955

AND OTHERS April 12

v.
'' THE STATE OF PUNJAB
(AND CONNECTED PETITIONS).

[MUKHERJEA, C.J., VIVIAN BOSE, JAGANNADHADAS

VENKATARAMA AYYAR and IMAM JJ.]

Constitutio11 of India, Arts. 19(/)(g), 73 and 162-Printing,

publishing and selling of text books for recognised schools in the
State of Punjab taken by the State Government exclusively in their
own hands-Whether any fundamental right of the private pub-
lishers who were ousted from the business, contravened-Art. 19(1)
(g) of the Constitution-Arts. 73 and 162-Whether contain any
definition of executive function-Union executive or the State
executive-Whether legislation by Parliament or State Legislature
ott certain items appertaining to their respective lists, 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-
 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
and others
approval of text books for recognised schools was
v. commonly known as the alternative method and the
procedure followed was shortly this: Books on relevant
The Stare of P1111jah
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 a1
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~a0~":,.~'
the execution and maintenance of the Constitution v.
and of the laws of the Commonwealth". The State of Punjab
Mukilerjell C.J.
In addition to this, the King could assign other func-
tions and powers to the Governor-General under sec-
tion 2 but in this particular case no assignment of
any additional powers was alleged or proved. The
court held that the agreements were not directly
authorised by the Parliament or under the provisions
of any statute and as they were not for the execution
and maintenance of the Constitution they must be
held to be void. Isacs, J., in his judgment, dealt elabo-
rately with the two types of agreements and held that
the agreements, so far as they purported to bind the
company to pay to the Government money, as the
price of consents, amounted to the imposition of 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.
 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
1aws. Accord mg. · t.he State 1ms °11 v.ott1er.<
to t he Ch"1e f J ust1ce
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]
1955 tion of the amount (article 203). After the grant is
Rni snhib Ram sanctioned, an Appropriation Bill is introduced to
'0011"~Y:rf."P!!' provide for the appropriation out of the consolidated
•• '"' fund of the State of all moneys required to meet the
TheSror• 0! l'mriab grants thus made by the Assembly (article 204). As
M11kh-;:;a c,1. soon as the Appropriation Act is passed, the expendi-
ture made under the heads covered by it would be
deemed to be properly authorised by law under article
.266(3) of the Constitution.
It may be, as Mr. Pathak contends, that the Ap-
propriation Acts are no substitute for specific legisla-
tion and that they validate only the expenses out of
the consolidated funds for the particular years for
which they are passed; but nothing more than that
may be necessary for carrying on of the trade or busi-
ness. Under article 266(3) of the Constitution no
moneys out of the consolidated funds of India or the
consolidated fund of 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- '""'!lnzi <lY"11thers
1'"P"'
nised schools in Punjab were estimated and shown in v. .
the annual financial statement and that the demands Tire St!lte of P1111i!lh
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]

19ss 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
1955
the Education Department and after selection was
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'he stlllevo,.. rp11111a. h
them and offer 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 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 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
und oth~rs
cising._, their undoubted right of approval calmot attach
v. to it a condition which has no bearing on the purpose
for which the approval is made. We fail to see how
Tile State of Punjab
.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 J9(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