Case Commentary
Ram Sahib Kapur V. State of Punjab AIR 1955 SC 549
Rai Sahib Ram Jawaya Kapur & OTHERS….Petitioners
Versus
State of Punjab…. Respondent
Introduction
In this case the petitioners have
argued that their freedom of trade under Article 19(1) (g) has been violated
and the government of Punjab is not allowing them to do business in the state
that's why they have filed a petition under Article 32 of the constitution to
stop the government of Punjab from carrying on their business and move this
business back to six individuals. These 6 individuals purport to carry on the
business of preparing, printing, publishing and selling textbooks for different
classes in the schools of Punjab particularly for the primary classes under the
name and style of Uttar Chand Kapoor & sons. It has been alleged by them
that they have done nationalization of books in the state and on the name of
nationalization they have actually peeped into our business and restricted us
to sell the books in the school. The state government of Punjab has peeped into the business under the executive power
of the state guaranteed to them under article 162 which defines the extent of
executive power of the state. After they peeped into this business the state
government was having the power to print, publish and sell the books in the
school and therefore the private individuals were not allowed to sell their
books in the Government schools. Therefore, this Petition is filed under
Article 32.
Facts
Under Article 162 the state
government of Punjab under an Executive order promulgated by them that all the
printing, publishing and selling of textbooks in the Government schools will be
done by the state government of Punjab and not by the private individuals. This
means that the cost price, the profit margins and the selling price will be set up by the
government and not by the private entities. Now these private individuals think
that by this executive order the state government has restricted their freedom
of trade under article 19 (1)(g) of the Constitution of India and therefore
they are not able to sell their books to the primary and Middle level classes.
That's why they have approached the Honorable Supreme Court of India under
Article 32.
Issues
1. Whether the executive power of the
state extends to publishing and selling of the books in the government schools?
2. Whether without legislation the
executive power can be exercised?
Contentions
It has been contended by the
Advocate of the petitioner that the executive government of a state is holy
incompetent to promulgate the executive action because this is done without any
legislative sanction to engage in the trade or business activity and also the
acts of government in carrying out their policy of establishing Monopoly in the
business of printing and publishing text books is without jurisdiction and illegal.
The second contention is that if the
state government will have the power then it will create a Monopoly in its
favor in respect of a particular trade or business and that could not be done
by any executive act but by means of proper legislation which should confirm to
the requirements of article 19 of the constitution.
Answers
The points raised by the petitioners
contents that the government has no power to carry on the business of printing
or selling tax books but it is not argued that the functions of a modern state
like the police states are confined just to collect taxes but a modern state is
certainly engage in all the modern facilities to provide education to its
children what the petitioner says is really agreed that there is a division of
power between the executive and judiciary and the function of the executive
cannot be exercised without the approval of the Legislature but whatever has
been done by the state government of Punjab it has been done under article 162
of our constitution and therefore it is valid.
Functions
Our constitution is Federal in its
structure. It is modeled on the British parliamentary system where the
executive is to have the primary responsibility for the formulation of
governmental policy and its transformation into law.
The Executive function comprises
both the determination of the policy as well as carrying it into
execution. This is evident and includes
the maintenance of law and order,
promotion of social and economic welfare, the direction of foreign
policy and the carrying of the general administration
of the state.
Judgment
As the petitioners do not have
fundamental right under Article 19 of the Constitution so the contentions of
the Mr Pathak stand dismissed and the question whether the government has
established Monopoly without any legislation and article 19 is immaterial
because a chance of prospect of having particular customers cannot be said to
be a right to property or to an interest in the undertaking and no question of
payment of compensation can arise because the petitioners have been deprived of
the same and that is why this petition is dismissed with costs.
Conclusion
The state government under the
executive power has the power to legislate even without the approval of the
Legislature and this could not be challenged in the court of law because
whatever has been said by the court is perfectly valid. The printing, selling and publishing of books
in the government schools will be done by the government that is a clear cut
case of social welfare. Their profit margins, cost price will be fixed by the
government and not by the private entities so the government is right on their
path under Article 162 of the Constitution of India.
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