A. A. Padmanbhan vs The State of Kerala & Ors.

s. 15(1) – Taking over of school by State Government – Propriety of – Appellants (managers of private aided schools) were 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, 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 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 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 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 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 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, 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 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). 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.

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 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 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 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 (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. 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. 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 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 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 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 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 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 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) 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 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]

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 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. [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 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 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 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 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]

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

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.

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 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 SCR 259 – distinguished.