Case: A.A. Padmanbhan Vs. The State of Kerala &amp; Others

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 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 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) 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 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 Single Judge as well as Division Bench of the Kerala High Court dismissing the writ petition and writ appeal of the appellant.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 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 denied21. 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 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 submission22. 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 closed23. 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 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 Government28. 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, 201335. 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 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 undern (1), compensation shall be paid to the persons entitled thereto on the basis of the market value thereof as on the date of the notification38. 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 appellant40. 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 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 interfere41. 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 15n (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 1542. 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.