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It was urged that the publication of the notification was "

an executive act "-an exercise of the executive power of the State-and since such a power could be exercised either by the Governor directly or through officers subordinate to him, it could not be predicated, from the mere fact that the notification was purported to be made in the name of the Governor, in Conformity with the provisions of Art. 166(1) that it was the Governor who was responsible for the notification and not some officer subordinate to him. On this reasoning the further contention was, that unless the respondent proved that it was the Governor himself who had authorised the issue of the notification, the State or the State Government could not be fixed with liability therefore, so as to be held guilty of disobedience of the order of injunction.
The submission of learned Counsel is correct to this extent that the process of making an order precedes and is different from the expression of it, and that while Art. 166(1) merely prescribes how orders are to be made, the authentication referred to in Art. 166(2) indicates the manner in which a previously made order should be embodied. As observed by the Privy Council in King Emperor v. Sibnath Banerji (1)with reference to the term " executive power " in Ch. 2 of Part 3 of the Government of India Act, 1935, corresponding to Part VI, Ch. 11 of the Constitution) " the term 'executive' is used in the broader sense as including both a decision as to action and the carrying out of the decision ".

Section 3(1) of the Act confers the power of issuing notifications under it, not on any officer but on the State Government as such though the exercise of that power would be governed by the rules of business framed by the Governor under Art. 166(3) of the Constitution. But this does not afford any assistance to the appellant. The order of Government in the (1) (1945) L. R. 72 I. A. 241 present case is expressed to be made " in the name of the Governor " and is authenticated as prescribed by Art. 166(2), and consequently " the validity of the order or instrument cannot be called in question on the ground that it is not an order or instrument made or executed by the Governor ".