RAI SAHIB RAM JAWAYA KAPUR Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This is a petition under Article 32 of the Constitution, preferred by six persons, who purport to may on the business of preparing, printing publishing and selling text books for different classes in the schools of Punjab, particularly for primary and middle classes, under the name and style "Uttar Chand Kapur and 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 unwarrantable 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 petitioner's right to carry on the trade which is guaranteed under Article 19(1)(g) of the Constitution 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 petitioners pray for writs in the nature of mandamus' directing the Punjab Government to withdraw the notifications which have affected their rights.

(2.) To appreciate the contentions that have been raised by the learned counsel who appeared for the parries before us, it will be necessary to narrate certain relevant facts. In the State of Punjab, all recognised schools have got to follow the course of studies approved by the Education Department of the Government and the use, by the pupils of the text books prescribed or authorised by the Department is a condition precedent to the granting of recognition to a school. For a long period of time prior to 1950, the method adopted by the Government for selection and approval of text books for recognised schools was commonly known as the alternative method and the procedure followed was shortly this:Books on relevant 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 10 or even more on each subject as alternative text books, leaving it to the discretion of the Head Masters of the different school, to select any one of 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 different schools according to the choice made by their respective Head Masters. Authors, who were not publishers, 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.

(3.) This procedure, which was in vogue since 1905, was altered in material particulars on and from May 1950. By certain resolutions 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 book 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, 5 per cent. on the sale price of all the approved text books. The result therefore was that the Government at this time practically took upon themselves the monopoly of publishing the text books on some of the subjects and with regard to the rest also, they reserved for themselves a certain royalty upon the sale proceeds.