RAI SAHIB RAM JAWAYA KAPUR V. STATE OF PUNJAB, AIR 1955 SC 549

RAI SAHIB RAM JAWAYA KAPUR V. STATE OF PUNJAB, AIR 1955 SC 549

 

 FACTS

1. The Punjab Government initiated the policy of undertaking the business of publishing, printing and selling textbooks for use in aided schools of the State. The private publishers were altogether ousted from this business.
2. 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. One of the notifications omitted the word “publishers” altogether and invited only the “authors and others” to submit books for approval by the Government. These “authors and others' ' would only get a royalty at the rate of 5% on the sale of the textbooks at the price or prices specified in the list.
3. 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.
4. In a nutshell there are 3 parties that are involved, first is the State of Punjab, second is the schools aided by the State and third are the petitioners which include the publishing houses. Thus the publishing, printing and selling of the books were taken by the Government exclusively in their own hands and the publishing houses contend that it is a violation of their fundamental rights under Article 19(1)(g).

 

PETITIONER’S CONTENTIONS

• The contentions raised by Mr Pathak, who appeared in support of the petitioners, are of a three-fold character:
  • The State Government had no legislative authority or sanction to undertake the business envisaged;
  • it infringed the Fundamental Right of the petitioners to carry on their business of publishing books for schools; and
  • 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.
• In Motilal v. Government of the State of Uttar Pradesh [AIR 1951 Allah. 257- 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.

Majority Opinion in the above case- 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.

 

RATIONALE

The Court held that the executive powers of the Government are co-extensive with its legislative power. Hence if the executive is acting in an area which is covered by the legislative power the executive is operating within its jurisdiction.

 Having said this, the Court next defined the nature of the executive power in these words: “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 executive Government...can never go against the provisions of the Constitution or of any law... 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 executive power is ultimately subject to legislative control because of the responsibility of the Council of Ministers to the Legislature. Also, if any activity needs expenditure of money, the same must be sanctioned by the Legislature as no money can be withdrawn from the Consolidated Fund without an Appropriation Act.

 

HELD

The Court held that no legal right of the petitioners, much less a Fundamental Right, was being invaded by the Government action as they could carry on their business of publishing and selling books without any restriction. They had no legal right to have their books prescribed as textbooks in schools.

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. Petition was dismissed. 

This concept was reiterated in Naraindas v State of Madhya Pradesh, 1974 case that the executive can take administrative action without a specific statutory sanction provided the area was falling within the legislative competence of the concerned Legislature, and does not infringe the legal right of any person.