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

2. These three appeals have been filed bys 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 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 appellants3. 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 appeals4. 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 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.7 of 2015. The Special Leave Petitions were dismissed on 05.10.2015 by following order:The special leave petition is dismissedHowever, in the interest of the children in the, Mr. V. Giri, learned senior counsel appearing for the respondent has fairly stated that thel will continue with them till the end of this academic yearWe make it clear that it would be the responsibility of the State to shift these children to another school from the next academic year5. 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 16.06.20166. 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 undern (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 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 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 appeals14. 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. 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 Act15. 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 thisn 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 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.

Reasoning:
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.