Kerala High Court
A.A.Padmanabhan vs State Of Kerala on 8 June, 2015
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
WEDNESDAY, THE 23RD DAYOF NOVEMBER 2016/2ND AGRAHAYANA, 1938
WP(C).No. 25292 of 2016 (J)
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PETITIONER(S):
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A.A.PADMANABHAN
RESIDING AT ATHANIKKAL HOUSE,
THALAKKOTTUKARA P.O.,
KECHERY, THRISSUR DISTRICT, PIN-680 501.
BY ADVS.SRI.PAUL MATHEW (PERUMPILLIL)
SRI.PRASUN.S
RESPONDENT(S):
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1. STATE OF KERALA
REPRESENTED BY CHIEF SECRETARY,
SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.
2. GENERAL EDUCATION DEPARTMENT,
REPRESENTED BY ITS SECRETARY,
SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.
3. KERALA LEGISLATIVE ASSEMBLY,
REPRESENTED BY ITS SECRETARY-IN-CHARGE
THIRUVANANTHAPURAM, PIN-695 001.
4. DIRECTOR OF PUBLIC INSTRUCTION,
JAGATHY, THIRUVANANTHAPURAM, PIN-695 014.
5. THE DISTRICT COLLECTOR,
CIVIL STATION, AYYANTHOLE, THRISSUR-680 003.
6. THE ASSISTANT EDUCATION OFFICER,
VADAKKANCHERRY, THRISSUR DISTRICT, PIN- 680 601.
R1 BY ADVOCATE GENERAL SRI. SUDHAKARA PRASAD
R1 BY GOVERNMENT PLEADER SMT.NISHA BOSE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
16-11-2016 ALONG WITH WP(C). NO.25619/2016 AND CONNECTED CASES,
THE COURT ON 23-11-2016 DELIVERED THE FOLLOWING:
WP(C).No. 25292 of 2016 (J)
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APPENDIX
PETITIONER(S)' EXHIBITS:
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EXT. P1: TRUE PHOTOSTAT COPY OF THE JUDGMENT DATED 8.6.2015 IN W.P.C.
NO. 12873/2015.
EXT. P2: TRUE PHOTOSTAT COPY OF THE JUDGMENT DATED 22.7.2015 PASSED
BY THE DIVISION BENCH OF THIS HON'BLE COURT IN WRIT APPEAL NO.
1262/2015.
EXT. P3: TRUE PHOTOSTAT COPY OF THE COMMON ORDER DATED 5.10.2015
PASSED BY THE HON'BLE SUPREME COURT IN SLP NOS. 27822 TO 27827/15.
EXT. P4: TRUE PHOTOSTAT COPY OF THE JUDGMENT DATED 16.6.2016 PASSED
BY THIS HON'BLE COURT IN CON. CASE C NO.1045/2015.
EXT. P5: A VERBATIM REPRODUCATION OF THE NOTICE ADMITTED IN THE
14TH KERALA LEGISLATIVE ASSEMBLY AS BULLETIN PART-2 DATED 7.7.2016.
EXT. P6: A VERBATIM REPRODUCTION OF THE RESOLUTION PASSED BY THE
3RD RESPONDENT-KERALA LEGISLATIVE ASSEMBLY ON 18.7.2016.
RESPONDENT(S)' EXHIBITS:
-----------------------
EXT.R1(A): TRUE COPY OF GOVERNMENT ORDER G.O.(MS) NO.132/2016/G.EDN.
DATED 03.08.2016.
EXT.R1(B): TRUE COPY OF CIRCULATION NOTE DATED 07.06.2016.
EXT.R1(C): TRUE COPY OF AFFIDAVIT FILED IN C.C.(C) NO.1045/2015.
//TRUE COPY//
P.S.TO JUDGE
'C.R.'
A.K.JAYASANKARAN NAMBIAR, J.
-------------------------------
W.P.(C).NOS.25292, 25619, 25622, 25695
& 25790 OF 2016
-----------------------------------
Dated this the 23rd day of November, 2016
J U D G M E N T
As all these cases involve a common issue, they are taken up together for consideration and disposed by this common judgment. The challenge in these writ petitions is against a resolution dated 18.07.2016 passed by the Kerala Legislative Assembly, and the consequent Notification dated 27.07.2016 issued by the State Government, directing the vesting of certain private aided schools, absolutely, in the State Government.
2. The brief facts necessary for a disposal of these writ petitions are as follows:
The petitioners in these writ petitions are the erstwhile Managers of Aided private schools that were functioning in the State. The functioning of the schools was regulated by the provisions of the Kerala Education Act and Rules [hereinafter referred to as the "KE Act and Rules"]. The said Managers had, prior to the introduction of the Right to Children to Free and Compulsory Education Act, 2009, W.P.(C).No.25292/2016 & con. cases 2 [hereinafter referred to as the 'RTE Act'], intimated the State Government of their proposal to close down the respective schools under their management and, on completion of the statutory period of one year, written to the Educational authorities in the State to comply with the procedural formalities to effect a formal closure of the respective schools. On the Educational authorities taking a stand that permission for closing the school could not be granted, one of the Managers approached this court through a writ petition, which was disposed holding that, in the absence of any proposal by the State Government to take over the management of the school, the right of the Manager of an aided school to close down the school is not affected by the provisions of the RTE Act and Rules, especially when such school does not have a recognition under the RTE Act, either on account of it not applying for a recognition, or on account of it not complying with the provisions of the said Act. It was held in that case that the right of the Manager under the KE Act and Rules, to close down the school under such circumstances, was absolute and could not be interfered with by the State Government. The judgment of this court, which is reported as Padmanabhan A. A. v. Director of Public Instruction, Tvm and Others in [2015 (3) KHC 542], was W.P.(C).No.25292/2016 & con. cases 3 upheld by a Division Bench of this court through the judgment dated 22.07.2015 in W.A.No.1262/2015. A Special Leave Petition preferred against the said Division Bench judgment was also dismissed by the Supreme Court. Under the said circumstances, when similar writ petitions came to be filed by the other Managers, who are also petitioners in the present set of writ petitions, this court, following its judgment in Padmanabhan A. A. v. Director of Public Instruction, Tvm and Others - [2015 (3) KHC 542], allowed the said writ petitions and found that the right of the Managers to close down their respective schools, in terms of the provisions of the KE Act and Rules, was absolute and could not be interfered with by the State Government.
3. It would appear that the procedure for closing down the schools met with resistance from some quarters, such as the Parent Teacher Associations functioning in the said schools, as also the public in the locality, who were interested in the continued functioning of the schools in the respective areas. This led the petitioners herein to approach this Court through Contempt of Court cases, seeking a direction to the educational authorities to implement W.P.(C).No.25292/2016 & con. cases 4 the directions of this Court. The said proceedings eventually led to the educational authorities complying with the procedural formalities that were required to effect a closure of the schools. On their reporting the fact of closure of the schools before this court, the Contempt of Court cases were closed recording the fact of closure of the schools in compliance with the directions of this court. It is significant to note, however, that at the time of closing the contempt of court cases, the State Government had filed an affidavit before this court stating that the Government had decided to acquire the schools in question by invoking the power under Section 15 of the KE Act. It is also seen, from the file notings that have been produced before this court, that the Chief Minister and the Minister for Education took a decision on 07.06.2016, to take steps to acquire the schools in terms of Section 15 of the KE Act and, thereafter, the said decision was approved by the Council of Ministers of the State Government on 29.06.2016. Based on the latter decision, a resolution was unanimously passed by the Kerala Legislative Assembly on 18.07.2016, and following this, a Notification dated 27.07.2016 was issued, directing the vesting of the schools in the Government with effect from 27.07.2016. This Notification was modified by a later Notification dated 03.08.2016 clarifying that the W.P.(C).No.25292/2016 & con. cases 5 schools shall vest absolutely with the Government from the date of finalization of compensation.
4. In the writ petitions, the petitioners impugn the aforesaid Notifications issued by the State Government on the following contentions:
Under Section 15 of the KE Act, the State Government can exercise its power to acquire an aided school only if the factual pre-requisites for the exercise of the power are shown to exist, and even then, by following the procedure stipulated in the Section for issuing the required notification. It is contended that, at the time of closure of the contempt cases, it was the definite stand of the State Government before this Court that the schools had been closed down in accordance with the KE Act and Rules, and hence, as on the date of the decision taken by the State Government to acquire the schools, there were no aided schools in existence that could have been acquired by the State Government. Referring to the file notings produced by the State Government before this Court, it is contended that the notings of the Finance W.P.(C).No.25292/2016 & con. cases 6 Minister and the Chief Minister, on 07.06.2016, cannot be seen as a decision of the State Government, and the first decision of the State Government, for the purposes of Section 15 of the KE Act, was taken only on 29.06.2016, by the Cabinet of Ministers. It is further contended that the decision of the State Government is also bad in that the necessary pre-conditions warranting an exercise of the power by the State Government did not exist in the instant cases. Alternatively, it is contended that, even assuming that the State Government can validly acquire the schools, in terms of Section 15 of the KE Act, the compensation payable to the petitioners for the said acquisition must be one that is determined in terms of the Land Acquisition, Rehabilitation and Re-settlement Act, 2013 [hereinafter referred to as the '2013 Act']. It is, in particular, pointed out that, while the KE Act is a State legislation that is traceable to Entry 25 of List III of the Seventh Schedule to the Constitution of India, the 2013 Act is a Parliamentary Legislation traceable to Entry 42 of the same List, and hence, in the event of a conflict between the two enactments, in the matter of determination of compensation, the W.P.(C).No.25292/2016 & con. cases 7 former must yield to the latter. It is further contended that, while the KE Act may have obtained the assent of the President for the purposes of Article 254 of the Constitution, the 2013 Act is a subsequent Parliamentary Legislation, and the Presidential assent obtained for the KE Act earlier, would not save it from a challenge based on inconsistency with Parliamentary Legislation on the same subject.
5. Through the counter affidavits filed in the writ petitions, the State Government would refute the averments in the writ petitions with the following contentions;
The decision, to take over the schools in question, was taken when the schools continued to be aided schools for the purposes of the KE Act and Rules. It is contended that, through the mere closure of the schools, the schools did not cease to exist, as aided schools, for the purposes of the KE Act and hence, the acquisition of the schools by the Government was in accordance with the provisions of the said Act.
As regards the decision taken by the State Government, it is pointed out that, the Cabinet W.P.(C).No.25292/2016 & con. cases 8 that met on 29.06.2016 only ratified the decision earlier taken, on 07.06.2016, by the Chief Minister, after consulting the Finance Minister. Thereafter, the procedural formalities that had to be complied with, in connection with the exercise of the power of acquisition, were complied with prior to issuing the impugned notifications. It is specifically contended that, as on the date of the decision of the State Government to acquire the schools, the schools were very much in existence, as aided schools, for the purposes of the KE Act and Rules.
Responding to the contentions with regard to the compensation payable to the petitioners in connection with the acquisition, it is stated that the provisions of Article 254 of the Constitution will have no application to the instant case since, the State Legislation and the Central Legislation pertain to different subjects/fields of legislation, although the said fields of legislation are mentioned in the same List viz.
List III of the Seventh Schedule to the Constitution of India. It is contended that the provisions of the 2013 Act were not intended to cover the field of Education, and matters W.P.(C).No.25292/2016 & con. cases 9 incidental thereto, and hence there cannot be any issue of conflict between the provisions of the State Act and the Central Act.
6. I have heard learned Senior Counsel Sri. Kurien George Kannanthanam and Sri. T. Krishnanunni, duly assisted by learned counsel Sri. Paul Mathew and Sri. R.K. Muralidharan for the petitioners, and the learned Advocate General Sri. Sudhakara Prasad, duly assisted by Smt. Nisha Bose, learned Government Pleader, for the respondent State Government, in all these writ petitions.
7. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that the following issues arise for consideration in the instant writ petitions;
(i) Whether the State Government has validly exercised the power conferred on it under Section 15 of the KE Act while issuing the impugned Notifications, declaring the acquisition and consequential vesting, in the Government, of the aided schools in question ? and
(ii) If there is a valid acquisition for the purposes of Section 15 of the KE Act, whether W.P.(C).No.25292/2016 & con. cases 10 the compensation for the acquired school property is to be computed in accordance with the KE Act and Rules or in accordance with the principles for determination of compensation obtaining under the 2013 Act?
8. A finding on Issue (i) would require a brief survey of the statutory provisions under the KE Act and Rules to be undertaken so as to understand the concept of a "school" under the Statute. The definition of "school" under the Act indicates that the term is used to refer, not only to the activities that are undertaken as part of the exercise of imparting educational instructions to students, but also to the land, buildings, playgrounds and hostels of the school and the movable properties such as furniture, books, apparatus, maps and equipment pertaining to the school. An "aided school" is one that is recognised by the Government and receives aid from the Government. Recognition is a term used to refer to the formal inclusion of a school within the ambit of the Act and Rules and it is generally granted to such schools as have received the permission of the statutory authorities to be opened, and have complied with the procedural conditions stipulated under the Rules for the grant of recognition. The Rules indicate, however, that recognition is co-terminus with the W.P.(C).No.25292/2016 & con. cases 11 existence of the school itself and, consequently, on the closure of a school, the recognition granted to it under the Rules also lapses [See: Chapter V KE Rules - Rule 1 (3), Rule 1 (5); Rule 17, Rule 22, Rule 24, Rule 25 & Rule 29]. As regards the closure of a school, Section 7 of the KE Act, read with Rule 24 of Chapter V of the KE Rules, indicates that, the Educational Agency of an aided school can close down the school by complying with the procedure of giving one year's notice of his intention to do so and thereafter, by making over all the records and accounts of the school, maintained under the Act and Rules, to the Educational authority authorised by the Government to receive the same. The said legal position has been settled through a line of decisions, including the decision of a Full Bench of this Court. Thus, once an aided school is closed down in terms of the Act and Rules, the recognition granted to it lapses, and it ceases to be a "School" for the purposes of the KE Act and Rules. I cannot, therefore, accept the contention urged on behalf of the State Government, that a closure of the school, pursuant to the one-year notice given by the Educational Agency/Manager and compliance with the procedural formalities therefore operates only as a closure of the school vis-a-vis the said person, and not as a closure of the school for other purposes. W.P.(C).No.25292/2016 & con. cases 12
9. The question then arises as to whether the power of the State Government under Section 15 of the KE Act was validly exercised for the purposes of acquiring "aided schools" belonging to the petitioners herein? As already noted, it is the specific contention of the petitioners that, on the date when the State Government took the decision to acquire the schools under Section 15, the closure of the schools had already been effected, and there were no such aided schools in existence, which could have been acquired in terms of the said provision. To appreciate the said argument, a reference to the chronological sequence of events that led to the issuance of the impugned Notifications of the State Government would be apposite. As already noted, the exercise of the power under Section 15 of the KE Act, by the State Government, commenced with a decision taken on 07.06.2016, by the Chief Minister, after consultation with the Finance Minister. The Cabinet concurred with this decision on 29.06.2016. Thereafter, pursuant to the resolution of the State Legislative Assembly on 18.07.2016, a Notification was issued on 27.07.2016, followed by a modified Notification dated 03.08.2016. The closure of the schools was effected on 10.06.2016 in the case of W.P.(C).No.25292/2016 & con. cases 13 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.
10. The provisions of Section 15 of the KE Act mandate that, on being satisfied that, the conditions specified therein for taking over a school exist, the State Government can, through a notification in the gazette, take over, with effect from a date to be specified in the Notification, any category of aided schools in any specified area or W.P.(C).No.25292/2016 & con. cases 14 areas. It is also stipulated that no notification can be issued unless the proposal for the taking over is supported by the resolution of the Legislative Assembly. It is evident from a reading of the aforesaid provision that it contains two parts viz. one that points to the existence of a power in the State Government to take over an aided school and another, that indicates the manner in which the take over should be implemented. 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 W.P.(C).No.25292/2016 & con. cases 15 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 [See Sri Parmeshwari Prasad Gupta v. The Union of India - [(1973) 2 SCC 543] and Punjab University v. V.N. Tripathi and Another - [(2001) 8 SCC 179]. As already noted, the closure of the schools in question after complying with all procedural formalities did not occur prior to 07.06.2016, the date of the decision of the State Government to take over the said schools.
11. The issue can be viewed from yet another angle. The power conferred on the State Government under Section 15 of the KE Act is one that is to be exercised in public interest. The power is one that, when exercised, deprives another person of his rights under the KE Act, as well as his right over property that is utilized for educational purposes under the Act. The said rights, accruing to a person under the Act, must be viewed, not as absolute rights, but rights on which W.P.(C).No.25292/2016 & con. cases 16 reasonable restrictions can be imposed, more so when the statute contemplates an exercise of power by the State Government in larger public interest. It is trite that when private interests are pitted against public interest, the former must yield to the latter. The provisions of Section 15 have, therefore, to be interpreted purposively to effectuate the object envisaged therein, and to facilitate the take over of an aided school by the Government. This is more so when the power exercised by the State Government is in furtherance of its constitutional obligation in the matter of providing education within the State. Such power, when validly exercised, cannot be nullified on the contention that during the implementation phase of the proposal, the aided school had closed down. I am also not impressed with the contentions advanced on behalf of the petitioners that the pre- conditions for the exercise of power did not exist in the instant cases. A perusal of the impugned Notifications would indicate that the State Government had exercised its power under Section 15 of the KE Act, in public interest, and with a view to improving the level of literacy in the areas of Kozhikode, Malappuram and Thrissur Revenue Districts. I therefore find that there has been a valid exercise of power by the State Government while directing the take over of the aided schools in W.P.(C).No.25292/2016 & con. cases 17 question, and the challenge against the impugned notifications on this ground must necessarily fail.
12. I turn now to the second issue with regard to the manner in which the compensation payable to the petitioners, for the schools taken over from them, must be determined. While it is the stand of the State Government that only such compensation, as is contemplated under the provisions of the KE Act and Rules, would be payable, it is the case of the petitioners that the compensation payable would have to be computed in accordance with the principles for determination of compensation under the 2013 Act. As already noticed above, the alternate contention of the petitioners in these writ petitions is that, even assuming the State Government can validly acquire the schools, in terms of Section 15 of the KE Act, the compensation payable to the petitioners for the said acquisition must be one that is determined in terms of the 2013 Act. It is, in particular, pointed out that, while the KE Act is a State legislation that is traceable to Entry 25 of List III of the Seventh Schedule to the Constitution of India, the 2013 Act is a Parliamentary Legislation traceable to Entry 42 of the same List, and hence, in the event of a conflict between the two enactments, in the W.P.(C).No.25292/2016 & con. cases 18 matter of determination of compensation, the former must yield to the latter. It is further contended that, while the KE Act may have obtained the assent of the President for the purposes of Article 254 of the Constitution, the 2013 Act is a subsequent Parliamentary Legislation, and the Presidential assent obtained for the KE Act earlier, would not save it from a challenge based on inconsistency with Parliamentary Legislation on the same subject.
13. The interpretation to be placed on Article 254 of the Constitution of India, has been the subject matter of many Constitution Bench decisions of the Supreme Court. In M. Karunanidhi v. Union of India and Another - [(1979) 3 SCC 431], repugnancy, in the context of Article 254 of the Constitution, was understood as requiring the fulfillment of a "triple test" that was enumerated as follows:
There must be a clear and direct
inconsistency between the Central Act and
the State Act;
Such inconsistency must be absolutely
irreconcilable; and
The inconsistency between the provisions of
W.P.(C).No.25292/2016
& con. cases 19
the two Acts must be of such nature as to
bring the two Acts into direct collision with
each other and a situation reached where it is
impossible to obey the one without
disobeying the other.
14. Article 254 of the Constitution makes provision first, as to what would happen in the case of a conflict between a Central and State Law with regard to the subjects enumerated in the Concurrent list, and secondly, for resolving such conflict. Article 254 (1) enunciates the normal rule that in the event of a conflict between a Union and a State law in the concurrent field, the former prevails over the latter. Clause (1) lays down that if a State law relating to a concurrent subject is repugnant to a Union law relating to that subject, then, whether the Union law is prior or later in time, the Union law will prevail and the State law shall, to the extent of such repugnancy, be void. To the general rule laid down in Clause (1), clause (2) engrafts an exception viz. that if the President assents to a State law which has been reserved for his consideration, it will prevail notwithstanding its repugnancy to an earlier law of the Union, both laws dealing with a concurrent subject. In such a case, the Central Act W.P.(C).No.25292/2016 & con. cases 20 will give way to the State Act, only to the extent of inconsistency between the two, and no more. In short, the result of obtaining the assent of the President to a State Act which is inconsistent with a previous Union law relating to a concurrent subject would be that the State Act will prevail in that State and override the provisions of the Central Act in their applicability to that State alone. The predominance of the State law may however be taken away if Parliament legislates under the proviso to clause (2). The proviso to Article 254 (2) empowers the Union Parliament to repeal or amend a repugnant State law, either directly, or by itself enacting a law repugnant to the State law with respect to the same matter. Even though the subsequent law made by the Parliament does not expressly repeal a State law, even then, the State law will become void as soon as the subsequent law of Parliament creating repugnancy is made. A State law would be repugnant to the Union law when there is a direct conflict between the two laws. Such repugnancy may also arise where both laws operate in the same field and the two cannot possibly stand together [See: Zaverbhai Amaidas v. State of Bombay - [AIR 1954 SC 752]; Hoechst Pharmaceuticals Ltd v. State of Bihar - [(1983) 4 SCC 45].
W.P.(C).No.25292/2016 & con. cases 21
15. The issue that then arises for consideration is whether, as in the instant case, a provision for acquisition of a school, in a State enactment relating to Education, can be said to be repugnant to the provisions of a Central legislation relating to land acquisition? As is trite, in the context of determining legislative competence, the doctrine of pith and substance mandates that if, on a scrutiny of the Act in question, it is found that the legislation is in substance 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 encroachment upon matters beyond its competence. The said principle has been applied even in the context of examining possible conflicts between two enactments, when both the enactments are relatable to List III of the Seventh Schedule to the Constitution. The test for repugnancy in such cases is firstly, whether the two legislations exercise their power over the same subject matter; and secondly, whether the law of Parliament was intended to be exhaustive to cover the entire field. To determine whether the two legislations cover or relate to the same subject matter, one has to find out the dominant intention of the two legislations, and if the dominant W.P.(C).No.25292/2016 & con. cases 22 intention of the two legislations is different and they cover different subject matters, then merely because the two legislations refer to some allied or cognate subjects, they do not cover the same field. A partial coverage of the same area in a different context and to achieve a different purpose does not bring about repugnancy, which is intended to be covered by Article 254 (2). In such situations, the attempt of a Court must be to see whether there is room or possibility for both enactments to apply. Repugnancy would follow only of there is no such room or possibility. [See: Rajiv Sarin & Another v. State of Uttarakhand & Ors - [(2011) 8 SCC 708]; K.T.Plantation Private Ltd. and another v. State of Karnataka - [(2011) 9 SCC 1].
16. In the instant cases, the acquisition by the State Government has been done in terms of Section 15 of the KE Act, that reads 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 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 W.P.(C).No.25292/2016 & con. cases 23 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 purposes 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 situate within sixty days of the date of such award and the decision of the Judge shall be final.
(5) Nothing in this section shall apply to minority schools.
The KE Act is a legislation that is relatable to Entry 25 of List III of the Seventh Schedule to the Constitution of India that deals with the subject of "Education, including technical education, medical W.P.(C).No.25292/2016 & con. cases 24 education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour", whereas the 2013 Act is a Parliamentary Legislation traceable to Entry 42 of the same List that deals with "Acquisition and requisitioning of property". While the provisions of Section 15 do, no doubt, contemplate a take over of schools, and a consequent vesting of the schools in the Government and, to that extent, deal with acquisition of property, the nature of the acquisition under the KE Act is entirely different from that contemplated under the 2013 Act, and for an entirely different purpose. Under the KE Act, the acquisition contemplated is for the purposes of furthering the primary object of the legislation viz. to provide for the better organization and development of educational institutions in the State and for providing a varied and comprehensive educational service throughout the State. The purpose of acquisition, and the use to which the acquired property can be put to is, therefore, specific, whereas under the 2013 Act, which is a general law governing acquisition of land, the acquisition of land is contemplated for public purposes and not for any specified purpose. As a matter of fact, the land, once acquired in terms of the 2013 Act, can be utilised for any of the purposes W.P.(C).No.25292/2016 & con. cases 25 envisaged under Section 2 of the said Act. It is also relevant to note that the provision for take over or acquisition of a school under the KE Act is one that is incidental or auxiliary to the dominant intention of the legislation viz. the provision of educational service in the State. Even if one were to assume that the provisions relating to acquisition of schools "encroaches" into the realm of acquisition of property under the 2013 Act, such incidental encroachment cannot be seen as leading to an irreconcilable inconsistency with the provisions of the 2013 Act. In my view, the provisions of Section 15 of the KE Act can co-exist with the provisions of the 2013 Act, and the acquisition in terms of the former legislation must be seen as outside the ambit of the latter legislation since it is an acquisition for specific purposes that are intended to achieve the object of the State legislation. I, therefore, find against the petitioners on the said issue and hold that, there is no irreconcilable inconsistency between the provisions for determination and payment of compensation under the KE Act, and the like provisions under the 2013 Act, and hence, the State Government would be liable to compensate the petitioners only in the manner and to the extent contemplated under the KE Act and Rules. W.P.(C).No.25292/2016 & con. cases 26
In the result, the writ petitions, in their challenge against the impugned notifications issued by the State Government, and to the provision of Section 15 of the KE Act and allied Rules, fail and are accordingly dismissed.
A.K.JAYASANKARAN NAMBIAR JUDGE prp/