1955 (4) TMI 35 - SC - Indian Laws

Government allowed to engage in trade without specific legislative sanction. Monopoly creation not always needing legislation.

RAI SAHIB RAM JAWAYA KAPUR Versus STATE OF PUNJAB

The Court dismissed the petitions, ruling that the executive government could engage in trade without specific legislative sanction. It held that creating ... - Issues Involved:1. Competence of the executive government to engage in trade or business without legislative sanction.2. Requirement of proper legislation for creating a monopoly by the State.3. Deprivation of property without authority of law and without payment of compensation under Article 31 of the Constitution.4. Infringement of fundamental rights under Article 19(1)(g) of the Constitution.Detailed Analysis:1. Competence of the Executive Government to Engage in Trade or Business Without Legislative Sanction:The first contention raised by Mr. Pathak was that the executive government of a state is wholly incompetent, without any legislative sanction, to engage in any trade or business activity. The judgment clarified that the executive power of the State extends to matters upon which the State Legislature is competent to legislate and is not confined to matters over which legislation has been passed already. The language of Article 162 of the Constitution indicates that the powers of the State executive extend to matters upon which the State Legislature can legislate. This principle also underlies Article 73 of the Constitution concerning the Union executive. The judgment cited the Australian case law but found it inapplicable due to differences in constitutional provisions. The Court concluded that the executive government could carry on the business of printing and publishing textbooks without specific legislation, provided that the expenditure is sanctioned by Appropriation Acts and does not require additional powers beyond ordinary law.2. Requirement of Proper Legislation for Creating a Monopoly by the State:The second contention was that creating a monopoly in favor of the State in respect of a particular trade or business could only be done by proper legislation conforming to Article 19(6) of the Constitution. The Court observed that the executive government, while formulating policies and carrying them into execution, acts under the tacit support of the legislative majority. The judgment emphasized that the executive function includes both policy determination and execution, and specific legislation is not always necessary unless additional powers are required. The Court held that the executive's actions in carrying out the policy of nationalization of textbooks were within its competence and did not require specific legislative sanction.3. Deprivation of Property Without Authority of Law and Without Payment of Compensation under Article 31 of the Constitution:The third contention was that the government could not 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 required under Article 31 of the Constitution. The judgment noted that the petitioners' claim was essentially for the chance or prospect of having their books approved as textbooks by the government. The Court held that such a chance or prospect does not constitute a right to property or an interest in an undertaking within the meaning of Article 31(2) of the Constitution. Consequently, no question of payment of compensation arises.4. Infringement of Fundamental Rights under Article 19(1)(g) of the Constitution:The petitioners claimed that their fundamental right to carry on any trade or business under Article 19(1)(g) of the Constitution was infringed by the government's actions. The judgment clarified that the petitioners had no fundamental right to have their books approved as textbooks by the government. The government had the undisputed right to adopt any method of selection for textbooks, including purchasing copyrights from authors. The Court held that the government's actions did not infringe the petitioners' fundamental rights under Article 19(1)(g), as the petitioners were free to print and publish any books they liked and offer them for sale.Conclusion:The Court dismissed the petitions, holding that the executive government's actions were within its competence and did not require specific legislative sanction. The petitioners' claims of infringement of fundamental rights under Article 19(1)(g) and deprivation of property under Article 31 were found to be without merit. The decision in Petition No. 652 of 1954 governed the other petitions, which were also dismissed without any order as to costs.