ons Nos 652 of 1954 and 71 to 77 and 85 of 1955
Under Article 32 of the Constitution for the enforcement of fundamental rights
G section Pathak P N Mehta and G C Mathur with him for the petitioners in Petition No 652 of 1954
P N Mehta and G 0
Mathur for the petitioners in Petitions Nos
71 to 77 and 85 of 1955
227 SM Sikri Advocate Generalfor the State of Punjab Jindra Lal and P G Gokhale with him for the respondent in all petitions
April 12
The following Judgments were delivered
PETITION NO 652 OF 1954
MUKHERJEA C J
This is a petition under article 32 of the Constitution preferred by six persons who purport to carry on the business of preparing printing publishing and selling text books for different classes in the schools of Punjab particularly for the primary and middle classes under the name and style Uttar Chand Kapur  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 petitioners  right to carry on the trade which is guaranteed under article 191g 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
To appreciate the contentions that have been raised by the learned counsel who appeared for the parties 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 con dition precedent to the granting of recognition to a 228 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 schools 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 pub lishers 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
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 books 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 on the sale price of all the 229 approved text books
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
Changes of a far more drastic character however were introduced in the year 1952 by a notification of the Education Department issued on the 9th of August 1952 and it is against this notification that the complaints of the petitioners are mainly directed
This notification omitted the word publishers altogether and invited only the authors and others to submit books for approval by the Government
These authors and others whose books were selected bad to enter into agreements in the form prescribed by the Government and the principal terms of the agreement were that the copyright in these books would vest absolutely in the Government and the authors and others would only get a royalty at the rate of 5 on the sale of the text books at the price or prices specified in the list
Thus the publishing printing and selling of the books were taken by the Government exclusively in their own hands and the private publishers were altogether ousted from this business
The 5 royalty in substance represents the price for the sale of the copyright and it is paid to an author or any other person who not being the author is the owner of the copyright and is hence competent in law to transfer the same to the Government
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
The contentions raised by Mr Pathak who appeared in support of the petitioners are of a three fold character
It is contended in the first place that the executive Government of a State is wholly incompetent without any legislative sanction to engage in any trade or business activity and that the acts of 230 the Government in carrying out their policy of establishing monopoly in the business of printing and publishing text books for school students is wholly without jurisdiction and illegal
His second contention is that assuming that the State could create a monopoly in its favour in respect of a particular trade or business that could be done not by any executive act but by means of a proper legislation which should conform to the requirements of article 196 of the Constitution
Lastly it is argued that 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
The first point raised by Mr Pathak in substance amounts to this that the Government has no power in law to carry on the business of printing or selling text books for the use of school students in competition with private agencies without the sanction of the legislature
It is not argued that the functions of a modern State like the police States of old are confined to mere collection of taxes or maintenance of laws and protection of the realm from external or internal enemies
A modern State is certainly expected to engage in all activities necessary for the promotion of the social and economic welfare of the community
What Mr Pathak says however is that as our Constitution clearly recognises a division of governmental functions into three categories viz the legislative the judicial and the executive the function of the executive cannot but be to execute the laws passed by the legislature or to supervise the enforcement of the same
The legislature must first enact a measure which the executive can then carry out
The learned counsel has in support of this contention placed considerable reliance upon articles 73 and 162 of our Constitution and also upon certain decided authorities of the Australian High Court to which we shall presently refer
Article 73 of the Constitution relates to the executive powers of the Union while the corresponding 231 provision in regard to the executive powers of a State is contained in article 162
The provisions of these articles are analogous to those of sections 8 and 49 2 respectively of the Government of India Act 1935 and lay down the rule of distribution of executive powers between the Union and the States following the same analogy as is provided in regard to the distribution of legislative powers between them
Article 162 with which we are directly concerned in this case lays down Subject to the provisions of this Constitution the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws the executive power of the State shall be subject to and limited by the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof
Thus under this article the executive authority of the State is exclusive in respect to matters enumerated in List II of Seventh Schedule
The authority also extends to the Concurrent List except as provided in the Constitution itself or in any law passed by the Parliament
Similarly article 73 provides that the executive powers of the Union shall extend to matters with respect to which the Parliament has power to make laws and to the exercise of such rights authority and jurisdiction as are exercisable by the Govern ment of India by virtue of any treaty or any agreement
The proviso engrafted on clause 1 further lays down that although with regard to the matters in the Concurrent List the executive authority shall be ordinarily left to the State it would be open to the Parliament to provide that in exceptional cases the executive power of the Union shall extend to these matters also
Neither of these articles contain any definition as to what the executive function is and what activities would legitimately come within its scope
They are concerned primarily with the distri 232 bution of the executive power between the Union on the one hand and the States on the other
They do not mean as Mr Pathak seems to suggest that it is only when the Parliament or the State Legislature has legislated on certain items appertaining to their respective lists that the Union or the State executive as the case may be can proceed to function in respect to them
On the other hand the language of article 162 clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not con fined to matters over which legislation has been passed already
The same principle underlies article 73 of the Constitution
These provisions of the Constitution therefore do not lend any support to Mr Pathak s contention
The Australian cases upon which reliance has been placed by the learned counsel do not in our opinion appear to be of much help either
In the first1 of these cases the executive Government of the Commonwealth during the continuance of the war entered into a number of agreements with a company which was engaged in the manufacture and sale of wool tops
The agreements were of different types
By one class of agreements the Commonwealth Government gave consent to the sale of wool tops by the company in return for a share of the profits of the transactions called by the parties a licence fee
Another class provided that the business of manufacturing wool tops should be carried on by the company as agents for the Commonwealth in consideration of the company receiving an annual sum from the Commonwealth
The rest of the agreements were a combination of these two varieties
It was held by a Full Bench of the High Court that apart from any authority conferred by an Act of Parliament or by regulations thereunder the executive Government of the Commonwealth had no power to make or ratify any of these agreements
The decision it may be noticed was based substantially upon the provision of section 61 of the Australian Constitution which is worded as follows 1 The Commtmonwwealth and the Central Wool Committee vs The Colonial Combining Spinning and Weaving Co Ltd  233 The executive power of the Commonwealth is vested in the Queen and is exercised by the Governor General as the Queen s representative and extends to the execution and maintenance of the Constitution and of the laws of the Commonwealth In addition to this the King could assign other functions and powers to the Governor General under section 2 but in this particular case no assignment of any additional powers was alleged or proved
The court held that the agreements were not directly authorised by the Parliament or under the provisions of any statute and as they were not for the execution and maintenance of the Constitution they must be held to be void
Isacs J in his judgment dealt elabo rately with the two types of agreements and held that the agreements so far as they purported to bind the company to pay to the Government money as the price of consents amounted to the imposition of a tax and were void without the authority of Parliament
The other kind of agreements which purported to bind the Government to pay to the company a remuneration for manufacturing wool tops was held to be an appropriation of public revenue and being without legislative authority was also void
It will be apparent that none of the principles indicated above could have any application to the circumstances of the present case
There is no provision in our Constitution corresponding to section 61 of the Australian Act
The Government has not imposed anything like taxation or licence fee in the present case nor have we been told that the appropriation of public revenue involved in the so called business in text books carried on by the Government has not been sanctioned by the legislature by proper Appropriation Acts
The other case1 is of an altogether different character and arose in the following way
The Commonwealth Government had established a clothing factory in Melbourne for the purpose of making naval and military uniforms for the defence forces and 1 Vide Attorney General for Victoria vs The Commonwealth  30 234 postal employees
In times of peace the operations of the factory included the supply of uniforms for other departments of the Commonwealth and for employees in various public utility services
The Governor General deemed such peace time operations of the factory necessary for the efficient defence of the Commonwealth inasmuch as the maintenance intact of the trained complement of the factory would assist in meeting wartime demands
A question arose as to whether operations of the factory for such purposes in peace time were authorised by the Defence Act
The majority of the court answered the question in the affirmative
Starke J delivered a dissenting opinion upon which Mr Pathak mainly relied
The learned Judge laid stress on section 61 of the Constitution Act according to which the executive power of the Commonwealth extended to the maintenance of the Constitution and of the laws of the Commonwealth and held that there was nothing in the Constitution or any law of the Commonwealth which enabled the Commonwealth to establish and maintain clothing factories for other than Commonwealth purposes
The opinion whether right or wrong turns upon the particular facts of the case and upon the provision of section 61 of the Australian Act and it cannot and does not throw any light on the question that requires decision in the present case
A question very similar to that in the present case did arise for consideration before a Full Bench of the Allahabad High Court in Motilal vs The Government of the State of Uttar Pradesh1
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
Different views were expressed by different Judges on this question
Chief Justice Malik was of opinion that in a written Constitution like ours the executive power may be such as is given to the executive or is implied ancillary or inherent
1 AIR 1951 Allahabad 257 235 It must include all powers that may be needed to carry into effect the aims and objects of the Constitution
It must mean more than merely executing the laws
According to the Chief Justice the State has a right to hold and manage its own property and carry on such trade or business as a citizen has the right to carry on so long as such activity does not encroach upon the rights of others or is not contrary to law
The running of a transport business there fore was not per se outside the ambit of the executive authority of the State
Sapru J held that the power to run a Government bus service was incidental to the power of acquiring property which was expressly conferred by article 298 of the Constitution
Mootham and Wanchoo JJ who delivered a common judgment were also of the opinion that there was no need for a specific legislative enactment to enable a State Government to run a bus service
In the opinion of these learned Judges 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
The opinion of Agarwala J undoubtedly supports the contention of Mr Pathak but it appears to us to be too narrow and unsupportable
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 Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate 236 assumption by one organ or part of the State of functions that essentially belong to another
The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature
It can also when so empowered exercise judicial functions in a limited way
The executive Government however can never go against the provisions of the Constitution or of any law
This is clear from the provisions of article 154 of the Constitution 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 limits within which the executive Government can function under the Indian Constitution can be ascertained without much difficulty by reference to the form of the executive which our Constitution has set up
Our Constitution though federal in its structure is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State
The executive function comprises both the determination of the policy as well as carrying it into execution
This evidently includes the initiation of legislation the maintenance of order the promotion of social and economic welfare the direction of foreign policy in fact the carrying on or supervision of the general administration of the State
In India as in England the executive has to act subject to the control of the legislature but in what way is this control exercised by the legislature Under article 531 of our Constitution the executive power of the Union is vested in the President but under article 75 there is to be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions
The President has thus been made a formal or constitutional 237 head of the executive and the real executive powers are vested in the Ministers or the Cabinet
The same provisions obtain in regard to the Government of States the Governor or the Rajpramukh as the case may be occupies the position of the head of the executive in the State but it is virtually the council of Ministers in each State that carries on the executive Government
In the Indian Constitution therefore we have the same system of parliamentary executive as in England and the council of Ministers consisting as it does of the members of the legislature is like the British Cabinet a hyphen which joins a buckle which fastens the legislative part of the State to the executive part
The Cabinet enjoying as it does a majority in the legislature concentrates in itself the virtual control of both legislative and executive func tions and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility the most important questions of policy are all formulated by them
Suppose now that the Ministry or the executive Government of a State formulates a particular policy in furtherance of which they want to start a trade or business
Is it necessary that there must be a specific legislation legalising such trade activities before they could be embarked upon We cannot say that such legislation is always necessary
If the trade or business involves expenditure of funds it is certainly required that Parliament should authorise such expenditure either directly or under the provisions of a statute
What is generally done in such cases is that the sums required for carrying on the business are entered in the annual financial statement which the Ministry has to lay before the House or Houses of Legislature in respect of every financial year under article 202 of the Constitution
So much of the esti mates as relate to expenditure other than those charged on the consolidated fund are submitted in the form of demands for grants to the legislature and the legislature has the power to assent or refuse to assent to any such demand or assent to a demand subject to reduc 238 tion of the amount article 203
After the grant is sanctioned an Appropriation Bill is introduced to provide for the appropriation out of the consolidated fund of the State of all moneys required to meet the grants thus made by the Assembly article 204
As soon as the Appropriation Act is passed the expenditure made under the heads covered by it would be deemed to be properly authorised by law under article 2663 of the Constitution
It may be as Mr Pathak contends that the Appropriation Acts are no substitute for specific legislation and that they validate only the expenses out of the consolidated funds for the particular years for which they are passed but nothing more than that may be necessary for carrying on of the trade or business
Under article 2663 of the Constitution no moneys out of the consolidated funds of India or the consolidated fund of a State shall be appropriated except in accordance with law and for the purposes and in the manner provided in this Constitution
The expression law here obviously includes the Appro priation Acts
It is true that the Appropriation Acts cannot be said to give a direct legislative sanction to the trade activities themselves
But SO long as the trade activities are carried on in pursuance of the policy which the executive Government has formulated with the tacit support of the majority in the legislature no objection on the score of their not being sanctioned by specific legislative provision can possibly be raised
Objections could be raised only in regard to the expenditure of public funds for carrying on of the trade or business and to these the Appropriation Acts would afford a complete answer
Specific legislation may indeed be necessary if the Government require certain powers in addition to what they possess under ordinary law in order to carry on the particular trade or business
Thus when it is necessary to encroach upon private rights in order to enable the Government to carry on their business a specific legislation sanctioning such course would have to be passed
239 In the present case it is not disputed that the entire expenses necessary for carrying on the business of printing and publishing the text books for recognised schools in Punjab were estimated and shown in the annual financial statement and that the demands for grants which were made under different heads were sanctioned by the State Legislature and due Appropriation Acts were passed
For the purpose of carrying on the business the Government do not require any additional powers and whatever is necessary for their purpose they can have by entering into contracts with authors and other people
This power of contract is expressly vested in the Government under article 298 of the Constitution
In these circumstances we are unable to agree with Mr Pathak that the carrying on of the business of printing and publishing text books was beyond the competence of the executive Government without a specific legislation sanctioning such course
These discussions however are to some extent academic and are not sufficient by themselves to dispose of the petitioners  case
As we have said already the executive Government are bound to conform not only to the law of the land but also to the provisions of the Constitution
The Indian Constitution is a written Constitution and even the legislature cannot override the fundamental rights guaranteed by it to the citizens
Consequently even if the acts of the executive are deemed to be sanctioned by the legislature yet they can be declared to be void and inoperative if they infringe any of the fundamental rights of the petitioners guaranteed under Part III of the Consti tution
On the other hand even if the acts of the executive are illegal in the sense that they are not warranted by law but no fundamental rights of the petitioners have been infringed thereby the latter would obviously have no right to complain under article 32 of the Constitution though they may have remedies elsewhere if other heads of rights are infringed
The material question for consideration therefore is What fundamental rights of the petitioners if any have been violated by the notifications 240 and acts of the executive Government of Punjab undertaken by them in furtherance of their policy of nationalisation of the text books for the school students The petitioners claim fundamental right under article 191g of the Constitution which guarantees inter alia to all persons the right to carry on any trade or business
The business which the petitioners have been carrying on is that of printing and publishing books for sale including text books used in the primary and middle classes of the schools in Punjab
Ordinarily it is for the school authorities to prescribe the text books that are to be used by the students and if these text books are available in the market the pupils can purchase them from any book seller they like
There is no fundamental right in the publishers that any of the books printed and published by them should be prescribed as text books by the school authorities or if they are once accepted as text books they cannot be stopped or discontinued in future
With regard to the schools which are recognised by the Government the position of the pub lishers is still worse
The recognised schools receive aids of various kinds from the Government including grants for the maintenance of the institutions for equipment furniture scholarships and other things and the pupils of the recognised schools are admitted to the school final examinations at lower rates of fees than those demanded from the students of non recognised schools
Under the school code one of the main conditions upon which recognition is granted by Government is that the school authorities must use as text books only those which are prescribed or autho rised by the Government
So far therefore as the recognised schools are concerned and we are concerned only with these schools in the present case the choice of text books rests entirely with the Government and it is for the Government to decide in which way the selection of these text books is to be made
The procedure hitherto followed was that the Government used to invite publishers and authors to submit their books for examination and approval by 241 the Education Department and after selection was made by the Government the size contents as well as the prices of the books were fixed and it was left to the publishers or authors to print and publish them and offer them for sale to the pupils
So long as this system was in vogue the only right which publishers like the petitioners had was to offer their books for inspection and approval by the Govern ment
They had no right to insist on any of their books being accepted as text books
So the utmost that could be said is that there was merely a chance or prospect of any or some of their books being approved as text books by the Government
Such chances are incidental to all trades and businesses and there is no fundamental right guaranteeing them
A trader might be lucky in securing a particular market for his goods but if he loses that field because the particular customers for some reason or other do not choose to buy goods from him it is not open to him to say that it was his fundamental right to have his old customers for ever
On the one hand therefore there was nothing but a chance or prospect which the publishers had of having their books approved by the Government on the other hand the Government had the undisputed right to adopt any method of selection they liked and if they ultimately decided that after approving the text books they would purchase the copyright in them from the authors and others provided the latter were willing to transfer the same to the Government on certain terms we fail to see what right of the publishers to carry on their trade or business is affected by it
Nobody is taking away the publishers  right to print and publish any books they like and to offer them for sale but if they have no right that their books should be approved as text books by the Government it is immaterial so far as they are concerned whether the Government approves of text books submitted by other persons who are willing to sell their copyrights in the books to them or choose to engage authors for the purpose of preparing the text books which they take up on themselves to print 31 242 and publish
We are unable to appreciate the argument of Mr Pathak that the Government while exercising their undoubted right of approval cannot attach to it a condition which has no bearing on the purpose for which the approval is made
We fail to see how the petitioners  position is in any way improved thereby
The action of the Government may be good or bad
It may be criticised and condemned in the Houses of the Legislature or outside but this does not amount to an infraction of the fundamental right guaranteed by article 19 1 g of the Constitution
As in our view the petitioners have no fundamental right in the present case which can be said to have been infringed by the action of the Government the petition is bound to fail on that ground
This being the position the other two points raised by Mr Pathak do not require consideration at all
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 196 of the Constitution is altogether immaterial
Again a mere chance or prospect of having particular customers cannot be said to be a right to property or to any interest in an undertaking within the meaning of article 312 of the Constitution and no question of payment of compensation can arise because the petitioners have been deprived of the same
The result is that the petition is dismissed with costs
PETITIONS NOS
71 TO 77 AND 85 OF 1955
MUKHERJEA C J
These 8 petitions under article 32 of the Constitution raise identically the same points for consideration as are involved in Petition No 652 of 1954 just disposed of
The petitioners in these cases also purport to be printers publishers and sellers of text books for various classes in the schools of Punjab and they complain of infraction of their fundamental rights under article 19 1 g of the Constitution by reason of the various notifications issued by the State of Punjab in pursuance of their policy 243 of nationalisation of text books
The learned counsel appearing in these cases have adopted in their entirety the arguments that have been advanced by Mr Pathak in Petition No 652 of 1954 and no fresh or additional argument has been put forward by any one of them
This being the position the decision in Petition No 652 of 1954 will govern these petitions also and they will stand dismissed but we would make no order as to costs


Summary:
For a long period of time prior to 1950 the text books for recognised schools in the State of Punjab were prepared by private publishers with their own money and under their own arrangements and they were submitted for the approval of the Government
The Government approved some books on each subject as alternative text books leaving it to the discretion of the Head Masters of different schools to select any alternative book on each subject
In May 1950 books on certain subjects like agriculture history social studies etc were prepared and published by the Government themselves without inviting offers from private publishers
With respect to other subjects offers were invited from publishers and authors
The alternative method was given up and only one text book on each subject was selected
The Government charged as royalty 5 on the sale price of all the approved text books
In 1952 a notification was issued by the Government which omitted the word Publishers altogether and invited only authors and others to submit books for approval by the Government
The authors and others whose books were approved had to enter into an agreement in the form prescribed by the Government the principal term of the agreement was that the copyright in these books would vest absolutely in Government and the authors and others would get a royalty of 5 on the sale price of the text books
It was contended that the publishing printing and selling of text books was thus taken by the Government exclusively into its own hands and the private publishers were altogether ousted from the business
The petitioners who purport to carry on the business of preparing printing publishing and selling text books for recognised schools in the Punjab pro29 226 ferred the present petition under article 32 of the Constitution praying for writs of mandamus directing the Punjab Government to withdraw the notifications of 1950 and 1952 on the ground that they contravened the fundamental rights of the petitioners guaranteed under the Constitution
Held that the action of the Government whether it was good or bad does not amount to an infraction of the fundamental right guaranteed by article 191g of the Constitution
In the present case no fundamental rights of the petitioners were violated by the notifications and the acts of the executive Government of the Punjab done by them in furtherance of their policy of nationalisation of the text books for the school students
A more chance or prospect of having particular customers cannot be said to be a right to property or to any interest or undertaking within the meaning of article 312 of the Constitution and no question of payment of compensation can arise because the petitioners have been deprived of the same
Articles 73 and 162 of the Constitution do not contain any definition as to what the executive function is and what activities would legitimately come within its scope
They are concerned primarily with the distribution of executive power between the Union on the one hand and the component States on the other
They do not mean that it is only when Parliament or the State Legislature has legislated on certain items appertaining to their respective lists that the Union executive or the State executive as the case may becan proceed to function in respect of them
On the other hand the language of article 162 Clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already
The same principle underlies article 73 of the Constitution
The Commonwealth and the Central Wool Committee vs The Colonial Combing Spinning and Weaving Co Ltd 31 CLR 421 Attorney General for Victoria vs The Commonwealth  and Motilal 1
The Government of the State of Uttar Pradesh AIR 1951 Allahabad 257 referred to