A. A. PADMANBHAN versus THE STATE OF KERALA & ORS.

Citation: [2018] 1 S.C.R. 1035 · Decided: 16-02-2018 · Supreme Court of India · Bench: A.K. SIKRI · Disposal: Dismissed

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Judgment (excerpt)

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A. A. PADMANBHAN
v.
THE STATE OF KERALA & ORS.
(Civil Appeal No. 2206 of 2018 etc.)
FEBRUARY 16, 2018
[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
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
                                      [2018] 1 S.C.R. 1035
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SUPREME COURT REPORTS
[2018] 1 S.C.R.
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
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the fir

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