Supreme Court of India
A. A. PADMANBHANversusTHE STATE OF KERALA & ORS.
- Citation
- 2018 INSC 165
- Decided
- 16 February 2018
- Disposal
- Dismissed
- Bench
- A K SIKRI
Holding
Section 15 of the Kerala Education Act, 1958 authorises a valid state takeover of aided schools and is not repugnant to the 2013 Land Acquisition Act; the decision remains effective even if the schools were closed before the notification, provided they existed at the time of governmental satisfaction.
Summary
The appellants, managers of private aided schools, challenged the Kerala government's decision to take over their schools under Section 15 of the Kerala Education Act, 1958, arguing that the schools had already been closed and that the provision conflicted with the Right to Fair Compensation and Transparency in Land Acquisition Act, 2013. The State argued that the decision to take over was taken by the Chief Minister on 7 June 2016, before the schools were closed, and that the statutory scheme required only three steps: government satisfaction, legislative approval, and Gazette notification. The Court held that the schools existed at the time of the government's satisfaction, so the decision remained valid, and that Section 15 operates in the field of education (Entry 25, List III) distinct from property acquisition (Entry 42, List III). Consequently, the provision was not repugnant to the 2013 Act, and the compensation mechanism under Section 15 complied with Article 300A. The Court also affirmed that the Chief Minister's decision, ratified by the Council of Ministers, constituted the required governmental satisfaction under the Rules of Business. All appeals were dismissed, upholding the State's takeover of the schools.
Issues considered
- The validity of exercising power under Section 15 of the Kerala Education Act, 1958 to take over a school that had been closed before the Gazette notification.
- Whether Section 15 of the Kerala Education Act, 1958 is repugnant to the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 under Article 254 of the Constitution.
- Whether the procedure followed under Section 15 satisfies the constitutional guarantee of protection of property under Article 300A.
- Whether the decision of the Chief Minister, as per the Rules of Business, constitutes the "satisfaction of the Government" required by Section 15.
- Whether the legislative competence of the State to enact Section 15 (Education, Entry 25 List III) is unaffected by the central legislation on land acquisition (Entry 42 List III).
Legislation cited
Subjects
education lawstate takeoveraided schoolsproperty acquisitionrepugnancypith and substanceconstitutional lawright to educationcompensationArticle 300A
Judgment
[2018] 1 S.C.R. 1035 1035
A. A. PADMANBHAN A
v.
THE STATE OF KERALA & ORS.
(Civil Appeal No. 2206 of 2018 etc.)
FEBRUARY 16, 2018 B
[A.K. SIKRI AND ASHOK BHUSHAN, JJ.]
Kerala Education Act, 1958:
s. 15(1) – Taking over of school by State Government –
Propriety of – Appellants (managers of private aided schools) were C
held entitled by the Court to close down their schools – However,
the State was directed to consider taking over the school – Before
the schools were closed down, Chief Minister of the State took a
decision to take over the schools – State Legislature passed resolution
to that effect – Thereafter, Notification for taking over of the school,
D
was issued as contemplated u/s. 15 (1) – By further Notification
earlier Notification was modified – Appellants filed writ petitions
challenging both the Notifications – Petitions were dismissed – Writ
appeals were also dismissed – On appeal, plea was taken that the
school could not have been taken over as before the date of
Notification to that effect, the school was closed down; that E
properties of the school could have been acquired only by resorting
to Right to Fair Compensation Act of 2013 and not u/s. 15; that
s.15 of the Act (a State Act) is repugnant to the provisions of 2013
Act (a Central Act) and hence void in view of Art. 254 of
Constitution; and that procedure of dispossessing the appellants is
F
in violation of Art. 300A of Constitution – Held: The date on which
the Chief Minister decided to take over, the schools were not closed
down – The said decision cannot lose its efficacy even if schools
were actually closed before the legislature passed the resolution or
before issuance of Notification – The decision of the State to take
over the schools which were imparting primary education was in G
public interest and was in keeping with the object of Art. 21A of
Constitution and Right to Education Act, 2009 – 1958 Act is
referable to education falling under Entry 25 of List III, while
acquisition of property is covered by s. 42 of List III – Therefore,
the power u/s. 15 of 1958 Act is distinct and separate from the
H
1035
1036 SUPREME COURT REPORTS [2018] 1 S.C.R.
A power under provisions of 2013 Act – Even if it is assumed that in
working of two legislations which pertain to different subject, if
there is incidental encroachment in respect of small area, it cannot
be said that one legislation over-rides the other – Looking into pith
and substance of both the legislations, it is clear that they operate
in different fields and 1958 Act cannot be said to be repugnant to
B
2013 Act – The procedure for taking over of the property u/s. 15 is
in full compliance of requirement of Art. 300A – Constitution of
India – Arts. 21A, 300A and Schedule VII, List III Entries 25 and 42
– Right of Children to Free and Compulsory Eduction Act, 2009 –
Right to Fair Compensation and Transparency in Land Acquisition,
C Rehabilitation and Resettlement Act, 2013.
Constitution of India:
Arts. 154 & 166 – State Government as defined u/s. 3 (60) of
General Clauses Act means the Governor – All the executive powers
are vested in Governor and he exercises such power either directly
D or through officers subordinate to him – Except the discretionary
functions, the Governor does not exercise any executive functions
individually – When a Minister takes an action according to the
Rules of Business, it is both in substance and form, the action of the
Governor – General Clauses Act, 1897 – s. 3(60).
E Principles of Doctrine of Pith and Substance:
In the event any overlapping is found in two entries of Seventh
Schedule or two legislations, it is the duty of the Court to find out
its true intent and purpose and to examine the particular legislation
in its pith and substance – Constitution of India – VII Schedule.
F
Dismissing the appeals, the Court
HELD: 1.1 The statutory scheme u/s. 15 of Kerala Education
Act, 1958 indicates that there are three steps in exercise of power
under Section 15, they are: (a) satisfaction of the Government
that in the public interest it is necessary to take control of any
G
category of institution; (b) resolution of the Legislative Assembly
approving the proposal for taking over the schools; and (c)
issuance of notification in the Gazette to take over with effect
from any day specified therein any category of aided schools.The
satisfaction of the Government in sub-section (1) of Section 15 is
H
A. A. PADMANBHAN v. THE STATE OF KERALA & ORS. 1037
the first phase of initiating the proceeding for taking over of the A
institutions. The satisfaction is required of “the Government”.
The Government refers to in the provision is the “State
Government”. The State Government as defined in Section 3(60)
of the General Clauses Act, 1897 means the Governor in a State.
The Governor, being head of a State in whom all the executive
B
power is vested under Article 154, exercises the power either
directly or through officers subordinate to him in accordance with
the Constitution of India. Under Article 166(1), any action taken
in the exercise of executive power is taken by the State
Government in the name of the Governor. Under Article 166
sub-clause (3), the Governor is to make rules for the more C
convenient transaction of the business of the Government of the
State, and for the allocation amongst the Ministers of the said
business in so far as it is not business with respect to which the
Governor is by or under the Constitution required to act in his
discretion. Except the discretionary functions of the Governor,
D
he does not exercise any executive functions individually or
personally. When a Minister takes an action according to the
Rules of Business, it is both in substance and in form the action
of the Governor. [Paras 15 and 16] [1048-H; 1049-A-F]
Samsher Singh v. State of Punjab & Anr., (1974) 2 SCC
831 : [1975] 1 SCR 814 ; A.Sanjeevi Naidu, Etc. v. E
State of Madras & Anr., (1970) 1 SCC 443 : [1970] 3
SCR 505 – followed.
1.2 The decision to take over four Schools was taken by
the Chief Minister with the consultation of the Finance Minister
on 07.06.2016. It was not challenged before the High Court or F
before this Court that Chief Minister was not competent to take
the decision under the Rules of Business of the State regarding
take over of the schools. [Para 19] [1053-E-F]
1.3 In view of the statutory scheme under Section 15(1) of
1958 Act satisfaction of the Government as contemplated by G
Section 15 is the satisfaction of the competent authority, who can
under the Rules of Business take a decision. Closure of school
took place on 07.06.2015 or thereafter and on the date when the
Chief Minister took the decision, actual closure of the school
H
1038 SUPREME COURT REPORTS [2018] 1 S.C.R.
A had not taken place. The fact that contempt petition was filed by
the management, which was closed on 16.06.2015 noticing that
all formalities regarding closure had been taken and in the
contempt, the statement on behalf of the State was also noted
that the State has decided to take over the institutions. Thus, on
the date when the Chief Minister took the decision, the existence
B
of school cannot be denied. [Para 20] [1054-E-G]
1.4 The other two steps i.e. approval of Legislative
Assembly and issuance of notification in the Gazette are further
steps regarding completion of the process and on the date when
Government was satisfied that it is in the public interest to take
C over the school, the school was in existence, the said decision
cannot be said to lose its efficacy, even if the school was actually
closed before issuance of notification under Section 15. When
the decision taken on 07.06.2016 was valid to close the school, it
was valid exercise of power and no infirmity can crept in the said
D decision even if as per the appellant, the school was closed before
Legislative Assembly passed the resolution or notification was
issued on 27.07.2016. [Para 21] [1054-H; 1055-A-B]
2. All the institutions, which have been taken over were
the institutions providing primary education. Under Article 21(A)
E of the Constitution of India as well as under the Right of Children
to Free and Compulsory Education Act, 2009, the State has to
take all steps for fulfilling the objective to provide education to
children upto 14 years of age seeking Primary (Upper Primary
and Lower Primary) education. The State decision to run the
Primary schools which were decided to be closed by their
F respective management was in public interest and in the interest
of the education. The High Court has rightly refused to interfere
with the decision of the State Government taking over the schools
to run the same directly by the Government. [Para 23]
[1055-D-F]
G 3.1 The Kerala Education Act, 1958 is a State enactment
referable to education comprised in Entry 25 of List III.
Acquisition of property is covered by Entry 42 List III. Entry 42
List III. [Paras 25 and 26] [1056-C]
3.2 In the event any overlapping is found in two Entries of
H Seventh Schedule or two legislations, it is the duty of the Court
A.A. PADMANBHAN v. THE STATE OF KERALA & ORS. 1039
to find out its true intent and purpose and to examine the particular A
legislation in its pith and substance. [Para 32] [1057-F-G]
3.3 The State is entitled to take over a school for the
purpose and object as contained in Section 15 of 1958 Act. The
Government is entitled to take over the school for any of the
following purposes that: (i) for standardising general education in B
the State, or (ii) for improving the level of literacy in any area, or
(iii) for more effectively managing the aided educational
institutions in any area, or (iv) for bringing education of any category
under their direct control in the public interest. In the present case
the State Government has taken over the school in the public
interest in the interest of education. The power under Section 15 C
given to the State is distinct and separate from the power which
is possessed by the State under the provisions of the Act, 2013.
[Paras 27 and 28] [1056-D-G]
3.4 Even if it is assumed that, in working of two legislations
which pertain to different subject matters, there is an incidental D
encroachment in respect of small area of operation of two
legislations, it cannot be held that one legislation overrides the
other. Looking into the pith and substance of both the legislations,
i.e., Act, 1958 and Act, 2013, it is clear that they operate in
different fields and it cannot be said that Act, 1958 is repugnant E
to Act, 2013.Therefore, the Act, 1958 and Act, 2013 operate in
different fields and Section 15 of the Act, 1958 in no manner is
overridden or repugnant to Act, 2013. There was no invalidity in
the exercise of the power of the State Government under Section
15 to take over the schools. [Paras 35 and 38] [1060-E-F;
1061-E] F
Deep Chand v. State of U.P and others, AIR 1959 SC
648 : [1959] Suppl. SCR 8 ; State of Kerala and others
v. Mar Appraem Kuri Company Limited and another
(2012) 7 SCC 106 : [2012] 4 SCR 448 ; Kartar Singh
v. State of Punjab, (1994) 3 SCC 569 : [1994] 2 SCR G
375 ; A.S. Krishna and others v. State of Madras,
AIR 1957 SC 297 : [1957] SCR 399 ; Union of India
and others v. Shah Goverdhan L. Kabra Teachers’
College, (2002) 8 SCC 228 : [2002] 3 Suppl. SCR 220
– relied on. H
1040 SUPREME COURT REPORTS [2018] 1 S.C.R.
A 3.5 Under Section 15(2) it is provided that where any school
has vested in the Government under sub-section (1),
compensation shall be paid to the persons entitled thereto on
the basis of the market value thereof as on the date of the
notification. The owners being entitled to compensation at the
market rate on the date of notification, the procedure for taking
B
over the property is in full compliance of requirement of Article
300A of the Constitution of India. [Paras 35 and 38] [1060-E;
1061-F]
Bhusawal Municipal Council v. Nivrutti Ramchandra
Phalak and others, (2015) 14 SCC 327 : [2013] 17
C SCR 259 – distinguished.
Case Law Reference
[1975] 1 SCR 814 followed Para 16
[1970] 3 SCR 505 followed Para 17
D
[1959] Suppl. SCR 8 relied on Para 30
[2012] 4 SCR 448 relied on Para 31
[1994] 2 SCR 375 relied on Para 32
[1957] SCR 399 relied on Para 33
E
[2002] 3 Suppl. SCR 220 relied on Para 34
[2013] 17 SCR 259 distinguished Para 39
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2206
of 2018.
F
From the Judgment and Order dated 01.08.2017 of the High
Court of Kerala at Ernakulam in Writ Appeal No.336 of 2017
WITH
Civil Appeal Nos. 2207 and 2208 of 2018.
G Mohit Paul, Harshad V. Hameed, Dileep Poolakkot, Ms. Ashly
Harshad, Advs for the Appellant.
Jaideep Gupta, Sr. Adv, G. Prakash, Jishnu M.L., Ms. Priyanka
Prakash, Ms. Beena Prakash, Vinay Shankar V.L., Advs for the
Respondents.
H
A. A. PADMANBHAN v. THE STATE OF KERALA & ORS. 1041
The Judgment of the Court was delivered by A
ASHOK BHUSHAN, J. 1. Leave granted.
2. These three appeals have been filed by Ex-Managers of three
private aided institutions questioning the common judgment of Kerala
High Court dated 01.08.2017 by which judgment, the Division Bench of
Kerala High Court while dismissing the writ appeals filed by the appellants B
have confirmed the judgment of learned Single Judge wherein the
appellants have questioned the Notification issued by State of Kerala
taking over the aided schools, which were managed by the appellants.
3. The facts and issues raised in these appeals being similar,
reference of facts and pleadings in Civil Appeal arising out of Special C
Leave Petition (C) No. 24386 of 2017 shall suffice for deciding all these
appeals.
4. The appellant had been running P.M.L.P. School, Kiralur, District
of Thrissur in the State of Kerala, which was also an aided institution.
The appellant with intention to close down the school gave a notice as D
required by Section 7(6) of the Kerala Education Act, 1958 (hereinafter
referred to as “the Act”). The Education Authorities did not permit the
appellant to close the institution, which led to filing of writ petition by the
appellant being W.P. (C) No. 12873 of 2015. W. P. (C) No. 12205 of
2015 was filed by the Headmistress incharge of the Aided P.M.L.P. E
School and the President of the Parent Teachers Association as also the
President of the School Samrakshanasamiti of the said school impugning
the steps taken by the manager of the aided school to close the aided
school. A direction was also prayed to the State Government to take
over the school. The Writ Petition was allowed by learned Single Judge
holding that appellant was entitled to close down the school in accordance F
with the provisions of the Act and Kerala Education Rules, 1959
(hereinafter referred to as “the Rules”). Writ Appeals against the said
judgment were dismissed by the Division Bench on 22.07.2015, however,
in Writ Appeal filed by the Headmistress & others, a direction was issued
by the Division Bench directing the respondents to consider their G
representations by which it was prayed that school be taken over and
run by the State Government. The above order was questioned by the
State of Kerala by filing Special Leave Petition Nos. 27822-27827 of
2015. The Special Leave Petitions were dismissed on 05.10.2015 by
following order:-
H
1042 SUPREME COURT REPORTS [2018] 1 S.C.R.
A “The special leave petition is dismissed.
However, in the interest of the children in the respondent-school,
Mr. V. Giri, learned senior counsel appearing for the respondent
has fairly stated that the respondent-school will continue with them
till the end of this academic year.
B We make it clear that it would be the responsibility of the State to
shift these children to another school from the next academic
year.”
5. The State Authorities did not take necessary steps to close the
institutions, hence the appellant filed a contempt application being
C Contempt Case (C) No. 1045 of 2015, in which contempt application,
learned Government Pleader made submission that the procedural
formalities in connection with the closing of the school have been complied
with. Taking note of which statement, the contempt case was closed
down on 16.06.2016.
D 6. Before the aforesaid date, the Chief Minister of the State took
a decision on 07.06.2016 to take over the institution of the appellant
alongwith other three institutions in exercise of power under Section 15
of the Act. The decision of the Chief Minister taken on 07.06.2016 was
endorsed by the Council of the Ministers on 29.06.2016. Kerala Legislative
E Assembly, unanimously passed the resolution dated 18.07.2016 to take
over the four schools under sub-section (1) of Section 15 of the Act. A
Notification dated 27.07.2016 was issued as contemplated under Section
15(1). A further Notification dated 03.08.2016 was issued modifying
the earlier Notification dated 27.07.2016 to the extent that the schools
shall vest in Government absolutely from the date of fixation of
F compensation. The appellant aggrieved by Notification dated 27.07.2016
filed a writ petition being Writ Petition (C) No. 25790 of 2016 questioning
the Notification dated 27.07.2016 as well as the Notification dated
03.08.2016. Prayer for striking down Section 15 of the Act as well as
declaring Rules 6, 7 and 8 of the Rules, 1959 as repugnant was also
G made. However, the prayer for challenging the provision of the Act and
the Rules does not appear to have been pressed. In the writ petition,
counter affidavit was filed where it was stated that a decision was taken
on 07.06.2016 to take over the institution by the State Government, which
was before the actual closure of the institution. A resolution has been
passed by Kerala Legislative Assembly approving the proposal;
H Notification has rightly been issued. Other three writ petitions were heard
A.A. PADMANBHAN v. THE STATE OF KERALA & ORS. 1043
[ASHOK BHUSHAN, J.]
alongwith connected writ petitions, which were filed by other appellants A
in this group of appeals. All the writ petitions were dismissed by learned
Single Judge vide its judgment and order dated 23.11.2016. Aggrieved
against the judgment dated 23.11.2016, appellant filed Writ Appeal No.
2360 of 2016, wherein it was contended that although the submission of
the appellant was made that on the date when the State Government
B
took over the schools under Section 15 of the Act, the closure of the
schools had already been effected but the said submission has not been
correctly understood by the learned Single Judge. The Division Bench
dismissed all the appeals on 09.12.2016 giving liberty to the appellants to
apply for review of the judgment of learned Single Judge. Against the
judgment dated 09.12.2016, Special Leave Petition was also filed by the C
appellant in this Court, which Special Leave Petition was withdrawn by
the appellant. Appellant filed a Review Petition before learned Single
Judge for review of judgment dated 23.11.2016, which Review Petition
has been dismissed by judgment and order dated 20.12.2016 of learned
Single Judge. Challenging the order dated 23.11.2016 as well as the
D
order dated 20.12.2016 passed on the review petition, writ appeals have
been filed before the Division Bench. The writ appeals have been
dismissed by the Division Bench vide its judgment dated 01.08.2017,
which judgment has been questioned before us in these appeals.
7. Learned Counsel appearing for the appellant in support of the
appeal has raised the following submissions: E
(a) The State Government could not have exercised power under
Section 15 of the Kerala Education Act, 1958 to take over
the school which has already been closed down. The
Notification under Section 15 has been admittedly issued on
27.07.2016 whereas according to the own case of the F
respondent the school was closed on 08.06.2016. The power
under Section 15 can be exercised with regard to a school
which is in existence. The closed down school cannot be
taken over by the State Government.
(b) The school and its properties could have been acquired by the G
State only after resorting to Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (hereinafter shall be referred to as
“2013, Act”), after making payment of compensation, deter-
mined in accordance with the above-mentioned 2013, Act. H
1044 SUPREME COURT REPORTS [2018] 1 S.C.R.
A (c) Section 15 of the Kerala Education Act, 1958 made by the
Legislature of the State falling under Entry 20 List III of the
Concurrent List is in conflict and repugnant to the provisions of
the 2013, Act, made by the Parliament under Entry 42 List III of
the Concurrent List, is void in view of the Article 254 of the
Constitution of India. The State Government has dispossessed
B
the petitioner under the guise of applying provision of law that is
not applicable to the subject matter and the procedure of
dispossessing the petitioner is in violation of Article 300A of the
Constitution of India.
(d) The closure of the school had attained finality by decision of
C dismissal of SLP (c) No. 27827 of 2015, when this Court passed
order on 05.10.2015.
8. Refuting the above submission learned Senior Counsel
appearing for the State of Kerala submits that the State Government
has validly exercised its power under Section 15 of the Kerala Education
D Act, 1958. The decision was taken by the Chief Minister to take over
the school on 07.06.2016 on which date the school was not actually
closed down. Hence, there is no substance in the contention of the
appellant that school had already been closed down and could not have
been taken over by the State Government. It is submitted that decision
E of the Chief Minister dated 07.06.2016 was ratified by the Council of
Ministers vide decision dated 29.06.2016. The issuance of notification
is a step in consequence of decision to take over the school and there is
no illegality in the issuance of Notification dated 27.07.2016. It is
submitted that the provision of Section 15 of the Kerala Education Act,
1958 operates in a different field to that of the provisions of the 2013,
F Act. Neither there is a conflict nor Section 15 is in any manner
repugnant to 2013, Act. Both the Acts operate in their own fields. The
action of taking over of the schools by State is for running the school in
compliance of its obligation to provide education to the primary school
students. Section 15 itself, contemplates the payment of compensation
G at market rate and the Collector has already determined the market
value of the schools, details of which has already been brought on record
by means of the counter affidavit. One of the schools which were taken
over accepted the compensation. One of the institutions which had filed
the Writ Petition (C) No. 25622 of 2016 has not challenged the judgment
of the learned Single Judge and had accepted the same.
H
A.A. PADMANBHAN v. THE STATE OF KERALA & ORS. 1045
[ASHOK BHUSHAN, J.]
9. We have considered the submissions of the learned counsel for A
the parties and perused the record.
RELEVANT STATUTORY PROVISIONS
10. The Kerala Education Act, 1958 was enacted for the better
organisation and development of the educational institutions in the State
after obtaining the assent of the President. Section 2 sub-section (1) B
defines the “Aided Schools” and the “School” is defined in Section 2
sub-section (9) in the following manner:
“2.(1). “aided school” means a private school which is
recognised by and is receiving aid from the Government, but
shall not include educational institutions entitled to receive C
grants under Article 337 of the Constitution of India, except
in so far as they are receiving aid in excess of the grants to
which they are so entitled;
2.(9). “School” includes the land, buildings, play-grounds
and hostels of the school and the movable properties such as D
furniture, books, apparatus, maps and equipments pertain-
ing to the school:”
11. Section 7 of the Kerala Education Act, 1958, which deals with
the “Managers of Schools”, contains the provision under Section 7 sub-
section (6) prohibiting the Manager from closing down school unless E
one year’s notice is given. Section 7 sub-section (6) is quoted as below:
“7.(6) No manager shall close down any school unless one
year’s notice, expiring with the 31st May of any year, of his
intention so to do, has been given to the officer authorised
by the Government in this behalf.” F
Further Rule 24 of the Kerala Education Rules, 1959 provides for
closure of private schools which is to the following effect:
“24. Closure of private schools: - (1) No private school shall
be closed down without giving the Director one year’s notice
expiring with the 31st May of any year of the intention to do G
so.
[(2) The Director may, after considering all aspects of the
question, grant permission for the closure of the school and
recognition of such school shall lapse. No application for
H
1046 SUPREME COURT REPORTS [2018] 1 S.C.R.
A withdrawal of the notice after the issue of permission shall
be entertained unless adequate reasons are adduced to the
satisfaction of the Director. The order of the Director in the
matter shall be final.]”
12. Section 15 of the Act contains a heading “Power to acquire
B any category of schools”. Section 15 which is relevant for the present
case is as follows:
“15. Power to acquire any category of schools - (1) If the
Government are satisfied that for standardising general
education in the State or for improving the level of literacy in
C any area or for more effectively managing the aided
educational institutions in any area or for bringing education
of any category under their direct control in the public interest
it is necessary to do so, they may, by notification in the Gazette,
take over with effect from any day specified therein any
category of aided schools in any specified area or areas;
D and such schools shall vest in the Government absolutely with
effect from the day specified in such notification;
Provided that no notification under this sub-section shall be
issued unless the proposal for the taking over is supported
by the resolution of the Legislative Assembly.
E
(2) Where any school has vested in the Government under
sub-section (1), compensation shall be paid to the persons
entitled thereto on the basis of the market value thereof as on
the date of the notification:
F Provided that where any property, movable or immovable has
been acquired, constructed or improved for the purpose of
the school with the aid or grant given by the Government for
such acquisition, construction or improvement, compensation
payable shall be fixed after deducting from the market value
the amounts of such aids or grants:
G
Provided further that in the case of movable properties the
compensation payable shall be the market value thereof on
the date of the notification or the actual cost thereof less the
depreciation, whichever is lower.
H
A.A. PADMANBHAN v. THE STATE OF KERALA & ORS. 1047
[ASHOK BHUSHAN, J.]
(3) In determining the amount of compensation and its A
apportionment among the persons entitled thereto the Collector
shall follow such procedure as may be prescribed.
(4) Any person aggrieved by an order of the Collector may,
in the prescribed manner, appeal to the District Court within
whose jurisdiction the school is situated within sixty days of B
the date of such award and the decision of the Judge shall be
final.
(5) Nothing in this section shall apply to minority schools.”
13. One of the principle submissions, which has been raised by
counsel for the appellant, is that on the date when notification under C
Section 15 was issued, i.e. on 27.07.2016, the school having been already
closed, the power under Section 15 of the Act could not have been
exercised. Learned counsel submits that after the writ petition filed by
the management was allowed by High Court permitting closure of the
school, which was affirmed by the Division Bench as well as by this D
Court on 05.10.2015, school stood closed, which disabled the State
Government to exercise the power under Section 15. We have already
noticed the factum of filing of writ petition by the management for closure
of the school, which stood allowed on 08.06.2015. Writ appeals were
filed against the judgment of learned Single Judge, which were decided
by the Division Bench on 22.07.2015. It is to be noticed that aggrieved E
by the judgment of learned Single Judge, writ appeals were also filed by
the Headmistress of the institution as well as Parent-Teachers Association
praying for the relief directing the State Government to take over the
institutions. In this context, it will be useful to refer to Para 27 of the
judgment of the Division Bench by which while affirming the judgment F
of the learned Single Judge, the Division Bench also directed the State
Government to decide the representations, which were submitted seeking
directions to take over the schools by the Government. Para 27 is as
follows:-
“….. However, it essentially is a matter to be decided by the G
Government and therefore, though we cannot issue any binding
direction to the Government, but can only clarify that the authorities
before whom Exts.P17 and P18 representations in W.P.(C) 12205/
15 are pending will bestow their attention to this claim and will
take appropriate decision on the representations.”
H
1048 SUPREME COURT REPORTS [2018] 1 S.C.R.
A 14. As noticed above, against the writ appeals, Special Leave
Petition was filed by the State of Kerala, which was dismissed on
05.10.2015. However while dismissing the petition, a direction was given
that children of the schools shall be allowed to continue till the end of the
academic year and thereafter they may be shifted to another school.
The management filed Contempt Petition alleging that orders of the Court
B
regarding closure of schools are not being given effect to by the State,
which contempt was closed on 16.06.2016 noticing the statement of
Government pleader that all formalities regarding closure of the school
have been complied with. In the writ petition filed by the manager,
learned Single Judge in its judgment dated 23.11.2016 has returned the
C findings regarding the actual date of closure of the school. In Para 9 of
the judgment, following was held:-
“…..The closure of the schools was effected on 10.06.2016 in
the case of W.P.(C) No. 25292/2016, on 09.06.2016 in the case
of W.P.(C) No.25619/2016, on 08.06.2016 in the case of W.P.(C)
D No. 25622/2016, on 07.06.2016 in the case of W.P.(C) No. 25695/
2016 and on 10.06.2016 in the case of W.P.(C) No. 25790/2016.
The affidavits filed on behalf of the State Government in the
Contempt cases indicate that the handing over of all records and
other procedural formalities for effecting a closure of the schools
was completed shortly thereafter. The contempt of court cases,
E that were filed by the petitioners herein, were all disposed after
recording the fact of closure of the schools, based on the affidavit
filed on behalf of the State Government. It deserves mention
here that, in the affidavit filed on behalf of the State, it was clearly
stated that the State Government had already taken a decision to
F acquire the schools in public interest by invoking the powers under
Section 15 of the KE Act.”
15. Learned Single Judge as well as the Division Bench has also
noticed that the Chief Minister has already taken a decision on 07.06.2016
after consultation with the Finance Minister regarding exercise of power
G under Section 15 to close the schools. Section 15(1) of the Act used the
words “If the Government are satisfied …………… they may, by
notification in the Gazette, take over with effect from any day specified
therein ……………… provided that no notification under this sub-section
shall be issued unless the proposal for the taking over is supported by the
resolution of the Legislative Assembly.” The above statutory scheme
H
A.A. PADMANBHAN v. THE STATE OF KERALA & ORS. 1049
[ASHOK BHUSHAN, J.]
indicates that there are three steps in exercise of power under Section A
15, they are: (a) satisfaction of the Government that in the public interest
it is necessary to take control of any category of institution; (b) resolution
of the Legislative Assembly approving the proposal for taking over the
schools; and (c) issuance of notification in the Gazette to take over with
effect from any day specified therein any category of aided schools.
B
16. The satisfaction of the Government in sub-section (1) of Section
15 is the first phase of initiating the proceeding for taking over of the
institutions. The satisfaction is required of “the Government”. The
Government refers to in the provision is the “State Government”. The
State Government as defined in Section 3(60) of the General Clauses
Act, 1897 means the Governor in a State. The Governor, being head of C
a State in whom all the executive power is vested under Article 154,
exercises the power either directly or through officers subordinate to
him in accordance with the Constitution of India. Under Article 166(1),
any action taken in the exercise of executive power is taken by the State
Government in the name of the Governor. Under Article 166 sub-clause D
(3), the Governor is to make rules for the more convenient transaction
of the business of the Government of the State, and for the allocation
amongst the Ministers of the said business in so far as it is not business
with respect to which the Governor is by or under the Constitution required
to act in his discretion. Except the discretionary functions of the Governor,
he does not exercise any executive functions individually or personally. E
When a Minister takes an action according to the Rules of Business, it is
both in substance and in form the action of the Governor. The Constitution
Bench of this Court in Samsher Singh Vs. State of Punjab & Anr.,
(1974) 2 SCC 831 while considering the constitutional provisions
regarding function of the President of India and Governor of the State F
laid down following in Paragraphs 30 and 31:-
“30. In all cases in which the President or the Governor exercises
his functions conferred on him by or under the Constitution with
the aid and advice of his Council of Ministers he does so by making
rules for convenient transaction of the business of the Government G
of India or the Government of the State respectively or by allocation
among his Ministers of the said business, in accordance with
Articles 77(3) and 166(3) respectively. Wherever the Constitution
requires the satisfaction of the President or the Governor for the
exercise of any power or function by the President or the Governor,
H
1050 SUPREME COURT REPORTS [2018] 1 S.C.R.
A as the case may be, as for example in Articles 123, 213, 311(2)
proviso (c), 317, 352(1), 356 and 360 the satisfaction required by
the Constitution is not the personal satisfaction of the President or
of the Governor but is the satisfaction of the President or of the
Governor in the constitutional sense under the Cabinet system of
Government. The reasons are these. It is the satisfaction of the
B
Council of Ministers on whose aid and advice the President or the
Governor generally exercises all his powers and functions. Neither
Article 77(3) nor Article 166(3) provides for any delegation of
power. Both Articles 77(3) and 166(3) provide that the President
under Article 77(3) and the Governor under Article 166(3) shall
C make rules for the more convenient transaction of the business of
the Government and the allocation of business among the Ministers
of the said business. The Rules of Business and the allocation
among the Ministers of the said business all indicate that the
decision of any Minister or officer under the Rules of Business
made under these two articles viz. Article 77(3) in the case of the
D
President and Article 166(3) in the case of the Governor of the
State is the decision of the President or the Governor respectively.
31. Further the Rules of Business and allocation of business among
the Ministers are relatable to the provisions contained in Article
53 in the case of the President and Article 154 in the case of the
E Governor, that the executive power shall be exercised by the
President or the Governor directly or through the officers
subordinate. The provisions contained in Article 74 in the case of
the President and Article 163 in the case of the Governor that
there shall be a Council of Ministers to aid and advise the President
F or the Governor, as the case may be, are sources of the Rules of
Business. These provisions are for the discharge of the executive
powers and functions of the Government in the name of the
President or the Governor. Where functions entrusted to a
Minister are performed by an official employed in the Minister’s
department there is in law no delegation because constitutionally
G the act or decision of the official is that of the Minister. The official
is merely the machinery for the discharge of the functions entrusted
to a Minister (see Halsbury’s Laws of England 4th Ed., Vol. I,
paragraph 748 at p. 170 and Carltona Ltd. v. Works
Commissioners).”
H
A.A. PADMANBHAN v. THE STATE OF KERALA & ORS. 1051
[ASHOK BHUSHAN, J.]
17. An earlier Constitution Bench judgment, i.e., A.Sanjeevi Naidu, A
Etc. Vs. State of Madras & Anr., (1970) 1 SCC 443, considered Section
68(C) of the Motor Vehicles Act, 1939, which Section provided as
follows:-
“…………Where any State transport undertaking is of opinion
that for the purpose, of providing an efficient, adequate, economical B
and properly co-ordinated road transport service, it is necessary
in the public interest that road transport services in general or any
particular class of such service in relation to any area or route or
portion thereof should be run and operated by the State transport
undertaking, whether to the exclusion, complete or partial of other
persons or otherwise, the State transport undertaking may prepare C
a scheme giving particulars of the nature of the services proposed
to be rendered, the area or route proposed to be covered and
such other particulars respecting thereto as may be prescribed,
and shall cause every such scheme to be published in the Official
Gazette and also in such other manner as the State Government D
may direct.”
18. A perusal of Section 68 sub-clause(C) indicates that the words
used in the provision “where any State transport undertaking is of opinion
…………., the State transport undertaking may prepare a scheme
…………, and shall cause every such scheme to be published in the E
Official Gazette”. In the Rules of Business pertaining to Rule 23(A) of
the Madras Government Business Rules, powers and functions which
State Transport Undertaking may exercise under Section 68(C) were to
be discharged on behalf of the State Government by the Secretary to
the Government of Madras in the Industries, Labour and Housing
Department. The Constitution Bench held that decision of the Secretary F
to the Government was the decision of the Governor as per Business
Rules. In Para Nos. 10, 11 and 12, following was stated:-
“10. The cabinet is responsible to the Legislature for every action
taken in any of the Ministries. That is the essence of joint
responsibility. That does not mean that each and every decision G
must be taken by the cabinet. The political responsibility of the
Council of Ministers does not and cannot predicate the personal
responsibility of the Council of Ministers to discharge all or any of
the Governmental functions. Similarly an individual Minister is
H
1052 SUPREME COURT REPORTS [2018] 1 S.C.R.
A responsible to the Legislature for every action taken or omitted to
be taken in his ministry. This again is a political responsibility and
not personal responsibility. Even the most hard working Minister
cannot attend to every business in his department. If he attempts
to do it, he is bound to make a mess of his department. In every
well planned administration, most of the decisions are taken by
B
the civil servants who are likely to be experts and not subject to
political pressure. The Minister is not expected to burden himself
with the day-to-day administration. His primary function is to lay
down the policies and programmes of his ministry while the Council
of Ministers settles the major policies and programmes of the
C Government. When a civil servant takes a decision, he does not
do it as a delegate of his Minister. He does it on behalf of the
Government. It is always open to a Minister to call for any file in
his ministry and pass orders. He may also issue directions to the
officers in his ministry regarding the disposal of Government
business either generally or as regards any specific case. Subject
D
to that over all power, the officers designated by the “Rules” or
the standing orders, can take decisions on behalf of the
Government. These officers are the limbs of the Government and
not its delegates.
11. In Emperor v. Sibnath Banerji1 construing Section 59(3) of
E the Government of India Act, 1935, a provision similar to Article
166(3), the Judicial Committee held that it was within the
competence of the Governor to empower a civil servant to transact
any particular business of the Government by making appropriate
rules. In that case their Lordships further observed that the
F Ministers like civil servants are subordinates to the Governor. In
Kalyan Singh v. State of U.P.2 this Court repelling the contention
that the opinion formed by an official of the Government does not
fulfil the requirements of Section 68(C) observed:
“The opinion must necessarily be formed by somebody to
G whom, under the rules of business, the conduct of the business
is entrusted and that opinion, in law, will be the opinion of the
State Government. It is stated in the counter-affidavit that all
the concerned officials in the Department of Transport
considered the draft scheme and the said scheme was finally
H
A.A. PADMANBHAN v. THE STATE OF KERALA & ORS. 1053
[ASHOK BHUSHAN, J.]
approved by the Secretary of the Transport Department before A
the notification was issued. It is not denied that the Secretary
of the said Department has power under the rules of business
to act for the State Government in that behalf. We, therefore,
hold that in the present case the opinion was formed by the
State transport undertaking within the meaning of Section 68(C)
B
of the Act, and that, there was nothing illegal in the manner of
initiation of the said Scheme.”
12. In Ishwarlal Girdharlal Joshi, etc. v. State of Gujarat3 this
Court rejected the contention that the opinion formed by the Deputy
Secretary under Section 17(1) of the Land Acquisition Act cannot
be considered as the opinion of the State Government. After C
referring to the rules of business regulating the Government
business, this Court observed at p. 282:
“In our case the Secretaries concerned were given the
jurisdiction to take action on behalf of Government and satisfy
themselves about the need for acquisition under Section 6, the D
urgency of the matter and the existence of waste and arable
lands for the application of sub-sections (1) and (4) of Section
17. In view of the Rules of business and the instructions their
determination became the determination of Government and
no exception could be taken.” E
19. The decision to take over four Schools was taken by the Chief
Minister with the consultation of the Finance Minister on 07.06.2016. It
was not challenged before the High Court or before this Court that Chief
Minister was not competent to take the decision under the Rules of
Business of the State regarding take over of the schools. What is being F
contended is that the school was to continue to exist till the date the
notification under Section 15 is issued for taking over of the school and
in event the school is closed, any date prior to the date of notification, the
power under Section 15 cannot be exercised. The management of the
institution has also filed a Review Petition after judgment of learned
Single Judge emphasising above issue. The learned Single Judge has G
elaborately dealt the issue and held that satisfaction as contemplated by
Section 15 was arrived on at 07.06.2016 when Chief Minister took the
decision. Learned Single Judge (Justice A.K.Jayasankaran Nambiar)
extensively considered the issue and expressed following opinion:-
H
1054 SUPREME COURT REPORTS [2018] 1 S.C.R.
A “……… The exercise of the power is made conditional only on
the State Government being satisfied that one or all of the factors
indicated therein exist, rendering it necessary for the State
Government to act in public interest. In my view, it is at this stage
alone that an aided school must exist, as the subject matter, in
relation to which the power of the State Government is exercised.
B
The procedure to be complied with in connection with the take
over, such as the framing of a proposal and placing it before the
Legislative Assembly of the State for its approval, before issuing
a formal notification, only ensures a valid implementation, or
execution, of the decision that is taken in exercise of the power
C conferred under the Section. It follows, therefore, that once an
aided school is identified as the subject matter of a proposed take
over, its closure during the stage of implementation of the decision
of the State Government is of no consequence, and will not affect
a valid exercise of power by the State Government. As regards
the exercise of power by the State Government it needs to be
D
noted that the Cabinet decision on 29.06.2016 had the effect of
ratifying the decision of the Chief Minister taken on 07.06.2016
and therefore the decision of the State Government effectively
relates back to 07.06.2016…………..”
20. Looking to the statutory scheme under Section 15(1), we are
E of the opinion that satisfaction of the Government as contemplated by
Section 15 is the satisfaction of the competent authority, who can under
the Rules of Business take a decision. We have noticed above the
findings of learned Single Judge regarding the date of actual closure of
the school, which finding has been specially affirmed by the Division
F Bench in writ appeal that closure of school took place on 07.06.2015 or
thereafter and on the date when the Chief Minister took the decision,
actual closure of the school was not taken place. The fact that contempt
petition was filed by the management, which was closed on 16.06.2015
noticing that all formalities regarding closure had been taken and in the
contempt, the statement on behalf of the State was also noted that the
G State has decided to take over the institutions. Thus, on the date when
the Chief Minister took the decision, the existence of school cannot be
denied.
21. The other two steps as noticed above, i.e. approval of
Legislative Assembly and issuance of notification in the Gazette are
H
A.A. PADMANBHAN v. THE STATE OF KERALA & ORS. 1055
[ASHOK BHUSHAN, J.]
further steps regarding completion of the process and on the date when A
Government was satisfied that it is in the public interest to take over the
school, the school was in existence, the said decision cannot be said to
lose its efficacy, even if the school was actually closed before issuance
of notification under Section 15. When the decision taken on 07.06.2016
was valid to close the school, it was valid exercise of power and no
B
infirmity can crept in the said decision even if as per the appellant, the
school was closed before Legislative Assembly passed the resolution or
notification was issued on 27.07.2016. It could have been open to the
Legislative Assembly not to approve the proposal on account of any
reason including any subsequent valid reason, but Legislative Assembly
having approved, no capital can be gained by the appellant on the strength C
of the above submission.
22. We fully endorse the view taken by the learned Single Judge
that on the date when the Government took the decision, i.e., the Chief
Minister took a decision on 07.06.2016 to take over the schools; the
schools were not actually closed. D
23. There is one more reason due to which the decision taken by
the State Government as approved by the Legislative Assembly and
notified in the Gazette needs no interference. The reason is that all the
institutions, which have been taken over were the institutions providing
primary education. Under Article 21(A) of the Constitution of India as E
well as under the Right of Children to Free and Compulsory Education
Act, 2009, the State has to take all steps for fulfilling the objective to
provide education to children upto 14 years of age seeking Primary (Upper
Primary and Lower Primary) education. The State decision to run the
Primary schools which were decided to be closed by their respective
management was in public interest and in the interest of the education. F
The High Court has rightly refused to interfere with the decision of the
State Government taking over the schools to run the same directly by
the Government.
24. Another limb of argument of the appellant forcefully put is
that acquisition of properties of the schools, if at all, was to be undertaken G
by the State, the State ought to have taken recourse of the provisions of
the Act, 2013. It is contended that owners of the schools are being
deprived of their right of property. They are clearly entitled for
compensation in accordance with the provisions of Act, 2013. Learned
counsel submits that Act, 2013 being a Parliamentary Act shall override H
1056 SUPREME COURT REPORTS [2018] 1 S.C.R.
A the provision pertaining to acquisition of properties of schools as contained
in Section 15 of Act, 1958.
25. The Kerala Education Act, 1958 is a State enactment referable
to education. The Entry of Education prior to its substitution in List III
was contained in List II Entry 11, by the Constitution (Forty-Second
B Amendment) Act, 1976. Entry 11 List II was omitted and the subject
was transferred to be comprised in Entry 25 of List III, which is as
follows:
“25. Education, including technical education, medical
education and universities, subject to the provisions of entries
C 63, 64, 65 and 66 of List I; vocational and technical training
of labour.”
26. Acquisition of property is covered by Entry 42 List III. Entry
42 List III is as follows:
“42. Acquisition and requisitioning of property.”
D
27. As noted above, the present is a case where school is being
taken over by the State in accordance with Section 15 which is a part of
the Scheme under the Kerala Education Act, 1958. The State is entitled
to take over a school for the purpose and object as contained in Section
15. The Government is entitled to take over the school for any of the
E following purposes that:
i) for standardising general education in the State, or
ii) for improving the level of literacy in any area, or
iii) for more effectively managing the aided educational
F institutions in any area, or
iv) for bringing education of any category under their direct
control in the public interest.
28. In the present case the State Government has taken over the
school in the public interest in the interest of education. The power under
G Section 15 given to the State is distinct and separate from the power
which is possessed by the State under the provisions of the Act, 2013.
29. It is contended that Section 15 being repugnant to Act, 2013
which being a Parliamentary enactment, it shall override the Act, 1958
in view of Article 254 sub-clause (1) of the Constitution of India.
H
A.A. PADMANBHAN v. THE STATE OF KERALA & ORS. 1057
[ASHOK BHUSHAN, J.]
30. The principles for ascertaining the inconsistency/ repugnancy A
between two statutes were laid down by this Court in Deep Chand Vs.
State of U.P and others, AIR 1959 SC 648. K. Subba Rao, J. speaking
for the Court stated following in paragraph 29:
“29……Repugnancy between two statutes may thus be
ascertained on the basis of the following three principles: B
(1) Whether there is direct conflict between the two
provisions;
(2) Whether Parliament intended to lay down an exhaustive
code in respect of the subject-matter replacing the Act of
the State Legislature and C
(3) Whether the law made by Parliament and the law made
by the State Legislature occupy the same field.”
31. This Court in State of Kerala and others Vs. Mar Appraem
Kuri Company Limited and another, (2012) 7 SCC 106, in paragraph D
47 held that:
“47. The question of repugnancy between parliamentary
legislation and State legislation arises in two ways. First, where
the legislations, though enacted with respect to matters in their
allotted spheres, overlap and conflict. Second, where the two
E
legislations are with respect to matters in the Concurrent List
and there is a conflict. In both the situations, the
Parliamentary legislation will predominate, in the first, by
virtue of non obstante clause in Article 246(1); in the second,
by reason of Article 254(1)”.
F
There cannot be any dispute to the proposition laid down by this
Court to the State of Kerala case (supra).
32. This Court has time and again emphasised that in the event
any overlapping is found in two Entries of Seventh Schedule or two
legislations, it is the duty of the Court to find out its true intent and purpose
and to examine the particular legislation in its pith and substance. In G
Kartar Singh Vs. State of Punjab, (1994) 3 SCC 569, in paragraphs
59 and 60 following has been held:
“59....But before we do so we may briefly indicate the
principles that are applied for construing the entries in the
H
1058 SUPREME COURT REPORTS [2018] 1 S.C.R.
A legislative lists. It has been laid down that the entries must
not be construed in a narrow and pedantic sense and that
widest amplitude must be given to the language of these
entries. Sometimes the entries in different lists or the same list
may be found to overlap or to be in direct conflict with each
other. In that event it is the duty of the court to find out its
B
true intent and purpose and to examine the particular
legislation in its ‘pith and substance’ to determine whether it
fits in one or other of the lists. [See : Synthetics and Chemicals
Ltd. v. State of U.P.; India Cement Ltd. v. State of T.N.]
60. This doctrine of ‘pith and substance’ is applied when the
C legislative competence of a legislature with regard to a
particular enactment is challenged with reference to the entries
in the various lists i.e. a law dealing with the subject in one
list is also touching on a subject in another list. In such a
case, what has to be ascertained is the pith and substance of
D the enactment. On a scrutiny of the Act in question, if found,
that the legislation is in substance one on a matter assigned
to the legislature enacting that statute, then that Act as a whole
must be held to be valid notwithstanding any incidental
trenching upon matters beyond its competence i.e. on a matter
included in the list belonging to the other legislature. To say
E differently, incidental encroachment is not altogether
forbidden.”
33. In A.S. Krishna and others Vs. State of Madras, AIR 1957
SC 297 this Court laid down following in paragraph 10:
F “10. This point arose directly for decision before the Privy
Council in Prafulla Kumar Mukherjee v. The Bank of
Commerce, Ltd. [1946 74 I.A. 23 There, the question was
whether the Bengal Money-Lenders Act, 1940, which limited
the amount recoverable by a money-lender for principal and
interest on his loans, was valid in so far as it related to
G promissory notes. Money-lending is within the exclusive
competence of the Provincial Legislature under Item 27 of
List II, but promissory note is a topic reserved for the center,
vide List I, Item 28. It was held by the Privy Council that the
pith and substance of the impugned legislation begin money-
H lending, it was valid notwithstanding that it incidentally
A.A. PADMANBHAN v. THE STATE OF KERALA & ORS. 1059
[ASHOK BHUSHAN, J.]
encroached on a field of legislation reserve for the center A
under Enter 28. After quoting its approval the observations
of Sir Maurice Gwyer C.J. in Subrahmanyan Chettiar v.
Muttuswami Goundan, (supra) above quoted, Lord Porter
observed :
“Their Lordships agree that this passage correctly B
describes the grounds on which the rule is founded, and
that it applies to Indian as well as to Dominion legislation.
No doubt experience of past difficulties has made the
provisions of the Indian Act more exact in some particulars,
and the existence of the Concurrent List has made it easier to C
distinguish between those matters which are essential in
determining to which list particular provision should be
attributed and those which are merely incidental. But the
overlapping of subject-matter is not avoided by substituting
three lists for two, or even by arranging for a hierarchy of
jurisdictions. Subjects must still overlap, and where they do, D
the question must be asked what in pith and substance is the
effect of the enactment of which complaint is made, and in
what list is its true nature and character to be found. If these
questions could not be asked, must beneficent legislation
would be satisfied at birth, and many of the subjects entrusted E
to Provincial legislation could never effectively be dealt
with.”...”
34. Further in Union of India and others Vs. Shah Goverdhan
L. Kabra Teachers’ College, (2002) 8 SCC 228 in paragraph 7
following was laid down: F
“7. It is further a well-settled principle that entries in the
different lists should be read together without giving a narrow
meaning to any of them. Power of Parliament as well as the State
Legislature are expressed in precise and definite terms. While an
entry is to be given its widest meaning but it cannot be so interpreted
G
as to override another entry or make another entry meaningless
and in case of an apparent conflict between different entries, it is
the duty of the court to reconcile them. When it appears to the court
that there is apparent overlapping between the two entries the
doctrine of “pith and substance” has to be applied to find out the
true nature of a legislation and the entry within which it would fall. H
1060 SUPREME COURT REPORTS [2018] 1 S.C.R.
A In case of conflict between entries in List I and List II, the same has
to be decided by application of the principle of “pith and substance”.
The doctrine of “pith and substance” means that if an enactment
substantially falls within the powers expressly conferred by the
Constitution upon the legislature which enacted it, it cannot be held
to be invalid, merely because it incidentally encroaches on matters
B
assigned to another legislature. When a law is impugned as being
ultra vires of the legislative competence, what is required to be
ascertained is the true character of the legislation. If on such an
examination it is found that the legislation is in substance one on a
matter assigned to the legislature then it must be held to be valid in
C its entirety even though it might incidentally trench on matters which
are beyond its competence. In order to examine the true character
of the enactment, the entire Act, its object, scope and effect, is
required to be gone into. The question of invasion into the territory
of another legislation is to be determined not by degree but by
substance. The doctrine of “pith and substance” has to be applied
D
not only in cases of conflict between the powers of two legislatures
but in any case where the question arises whether a legislation is
covered by particular legislative power in exercise of which it is
purported to be made.”
35. Even if it is assumed that, in working of two legislations which
E pertain to different subject matters, there is an incidental encroachment
in respect of small area of operation of two legislations, it cannot be held
that one legislation overrides the other. When we look into the pith and
substance of both the legislations, i.e., Act, 1958 and Act, 2013, it is clear
that they operate in different fields and it cannot be said that Act, 1958 is
F repugnant to Act, 2013. It is also relevant to note that under Section
15(2) it is provided that where any school has vested in the Government
under sub-section (1), compensation shall be paid to the persons entitled
thereto on the basis of the market value thereof as on the date of
the notification.
36. In the counter-affidavit in the present case, the State has clearly
G
mentioned that compensation has been determined by the Collector. In
paragraph 12 of the counter-affidavit following has been stated:
“12.Out of the 4 schools that have been taken over by
Government, compensations have been sanctioned to the
erstwhile Managers of the following 3 schools as per market
H value.
A.A. PADMANBHAN v. THE STATE OF KERALA & ORS. 1061
[ASHOK BHUSHAN, J.]
(i) A.U.P. School, Malaparamba A
Rs.5,85,86,710/- as per G.O.(Rt) No.181/
2017(GEdn dated 25.01.2017.
(ii) A.U.P. School, Palat, Kozhikode -
Rs.56,09,947/- as per G.O.(Rt)No.2289/
2017/Gedn dated 11.07.2017& B
G.O.(Rt)No.6047/2017/Fin dated
31.07.2017.
(iii) P.M.L.P. School, Kiraloor, Thrissur
Rs.79,54,550/- as per G.O.(Rt)No. 2289/
2017/Gedn dated 11.07.2017 & G.O. C
(Rt) No. 6047/2017/Fin dated
31.07.2017.
37. It is also relevant to note that under Section 15 sub-section
(4), any person aggrieved by an order of the Collector has a right to
appeal to the District Court.
D
38. Applying the ratio as laid down by this Court in the above
noted cases, we conclude that Act, 1958 and Act, 2013 operate in different
fields and Section 15 of the Act, 1958 in no manner is overridden or
repugnant to Act, 2013. There was no invalidity in the exercise of the
power of the State Government under Section 15 to take over the schools.
The owners being entitled to compensation at the market rate on the E
date of notification, the procedure for taking over the property is in full
compliance of requirement of Article 300A of the Constitution of India.
We, thus, do not find any merit in this submission of learned counsel for
the appellant.
39. Learned counsel for the appellant has placed reliance on the F
judgment of this Court in Bhusawal Municipal Council Vs. Nivrutti
Ramchandra Phalak and others, (2015) 14 SCC 327. Bhusawal
Municipal Council had filed the appeal against the interlocutory order
passed by the Bombay High Court by which interim relief was granted
to the appellant to the extent of payment of 50% of the enhanced amount
of compensation as awarded by the Reference Court in the land G
acquisition proceedings. The Council challenged the said order and
contended that the land was acquired for the public purpose, the Council-
appellant does not have sufficient funds to pay the enhanced
compensation, this Court may grant stay of payment of the enhanced
H
1062 SUPREME COURT REPORTS [2018] 1 S.C.R.
A amount of compensation awarded by the Reference Court. In the above
context following observation was made by this Court in paragraph 8:
“8. We see no justification to accept the submissions so
advanced on behalf of the appellant Council. Undoubtedly,
the appellant might be willing to meet its constitutional or
B legal obligation to open a primary school for imparting
education to children below 14 years of age but the question
does arise as to whether the appellant Council has a right to
meet a public purpose or a constitutional obligation at the
cost of individual citizens by depriving them of their
constitutional rights under Article 300-A of the Constitution?”
C
40. This Court dismissed the appeal filed by the Council and had
made the observation that right to property is not only a constitutional or
a statutory right but also a human right. Therefore, in case the person
aggrieved is deprived of the land without making the payment of
compensation, it would be tantamount to forcing the said uprooted persons
D to become vagabond. There cannot be any dispute to the proposition
laid down by this Court as above. For the land acquired under the Land
Acquisition Act compensation determined under the provisions of the
Land Acquisition Act, 1894 is required to be paid to the land owner. The
order granting interim relief to the appellant was held to be just order in
which this Court refused to interfere.
E
41. In the above case no such proposition has been laid down by
this Court which may help the appellant. The present is not a case of
acquisition under the Land Acquisition Act. As noted above, under
Section 15 sub-section (4) of Act, 1958, the payment of compensation
has to be made in accordance with the market value on the date of
F notification under Section 15.
42. In view of the foregoing discussion, we do not find any ground
to interfere with the judgments of the learned Single Judge as well as
Division Bench of the Kerala High Court dismissing the writ petition and
writ appeal of the appellant.
G 43. In the result, all the appeals are dismissed.
Kalpana K. Tripathy Appeals dismissed.
H
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