Ram Sahib Kapur V. State of Punjab

 

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.