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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2206 OF 2018

(arising out of SLP (C) No. 24386 of 2017)

A.A. PADMANBHAN …APPELLANT

VERSUS

THE STATE OF KERALA & ORS.    …RESPONDENTS

WITH

CIVIL APPEAL NO.2207 OF 2018 (arising out of SLP (C) No. 24565 of 2017)

AND

CIVIL APPEAL NO.2208 OF 2018 (arising out of SLP (C) No. 24722 of 2017)

J U D G M E N T ASHOK BHUSHAN, J.

Leave granted.

2. These three appeals have been filed by Ex-Managers of

three  private  aided  institutions  questioning  the  common

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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  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 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 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. School and the President of the Parent

Teachers  Association  as  also  the  President  of  the  School

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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 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 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:-

“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.

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.”

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5. The State Authorities did not take necessary steps to

close the institutions, hence the appellant filed a contempt

application being 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.   

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 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 compensation.  The appellant

aggrieved  by  Notification  dated  27.07.2016  filed  a  writ

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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  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; Notification has

rightly been issued. Other three writ petitions were heard

alongwith connected writ petitions, which were filed by other

appellants 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

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

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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 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 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:

(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 respondent the school was closed on 08.06.2016.

The power under Section 15 can be exercised with regard

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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  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, determined in accordance with

the above-mentioned 2013, Act. (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  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 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

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Government has validly exercised its power under Section 15 of

the Kerala Education 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

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, 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  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

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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.  

9. We have considered the submissions of the learned counsel

for 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) 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 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  furniture,  books, apparatus,  maps  and  equipments  pertaining  to the school:”

11. Section 7 of the Kerala Education Act, 1958, which deals

with the “Managers of Schools“,  contains the provision under

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Section 7 sub-section (6) prohibiting the Manager from closing

down school unless 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.”

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 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 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 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

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for improving the level of literacy in 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;  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.

(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:

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:  

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.  

(3) In determining the amount of compensation and  its  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 the

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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 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

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 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 of

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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 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.”

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 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

findings regarding the actual date of closure of the school.

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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) 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,  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 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 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 indicates that there are

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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.  

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 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

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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.  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 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 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, 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 Council of Ministers

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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 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 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 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 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 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).”

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17. An earlier Constitution Bench judgment, i.e., A.Sanjeevi

Naidu, 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  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  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 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 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

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Secretary  to  the  Government  of  Madras  in  the  Industries,

Labour and Housing Department.  The Constitution Bench held

that  decision  of  the  Secretary  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 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 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  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  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 to that over all power, the officers designated by the “Rules”  or  the  standing  orders,  can  take

20

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 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  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 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 approved by the Secretary of the Transport  Department  before  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)  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  referring  to  the  rules  of

21

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 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.”

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 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

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

22

(Justice A.K.Jayasankaran Nambiar) extensively considered the

issue and expressed following opinion:-

“………  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.  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 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 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 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

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school,  which  finding  has  been  specially  affirmed  by  the

Division 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  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 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

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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 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.   

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 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

25

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.     

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 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 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  Amendment)

Act, 1976. Entry 11 List II was omitted and the subject

was transferred to be comprised in Entry 25 of List III,

26

which is as follows:

"25.  Education,  including  technical education,  medical  education  and universities, subject to the provisions of entries  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.”

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 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.

27

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 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.  

30. The  principles  for  ascertaining  the  inconsistency/

repugnancy 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:

(1)  Whether  there  is  direct conflict  between  the  two provisions;

(2) Whether Parliament intended to lay  down  an  exhaustive  code  in

28

respect  of  the  subject-matter replacing  the  Act  of  the  State Legislature and

(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 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  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)”.

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

29

the particular legislation in its pith and substance. In

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  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 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 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 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  differently, incidental  encroachment  is  not  altogether forbidden.”

30

33.  In A.S. Krishna and others Vs. State of Madras, AIR

1957 SC 297  this Court laid down following in paragraph

10:

“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 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-lending, it was valid notwithstanding that it incidentally encroached on a field of legislation reserve for the center 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  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 distinguish between those matters which are essential  in  determining  to  which  list particular  provision  should  be  attributed and those which are merely incidental. But

31

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,  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 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:

“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 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. 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

32

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  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  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 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 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

33

operate in different fields and it cannot be said that

Act, 1958 is 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 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 value.

(i) A.U.P.  School,  Malaparamba 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 & 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

34

11.07.2017 & G.O. (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.  

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  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  judgment  of  this  Court  in  Bhusawal  Municipal

Council Vs. Nivrutti Ramchandra Phalak and others, (2015)

35

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 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 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 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?”

40. This Court dismissed the appeal filed by the Council

and had made the observation that right to property is

36

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 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.  

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 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

37

Single Judge as well as Division Bench of the Kerala High

Court dismissing the writ petition and writ appeal of the

appellant.

43. In the result, all the appeals are dismissed.

..........................J. ( A.K. SIKRI )

..........................J.     ( ASHOK BHUSHAN )

NEW DELHI, FEBRUARY 16, 2018.