-service law - MEDICAL DISABILITY PENSION - RETIRED BEFORE 1-1-2006 - Whether entitled for the same - yes - recommended for consideration as per new orders of Govt. - Principal Bench, New Delhi in O.A. No. 139 of 2009, Lt. Col. P.K. Kapur (Retd.) Vs. Union of India and judgments of Armed Forces Tribunal, Regional Bench, Chandigarh as well as judgment of Regional Bench, Chennai, those officers, who have taken voluntary retirement even prior to 01.01.2006 have been granted the disability pension. He submits that the Principal Bench, New Delhi in O.A. No. 139 of 2009 has already struck down Para 2.1 of the Government Circular dated 04.05.2009. The appellant submits that judgment of Principal Bench, New Delhi in O.A. No. 336 of 2011, Maj. (Retd.) Rajesh Kumar Bhardwaj Vs. Union of India & Ors. dated 07.02.2012 has been accepted by the Government of India and now an order dated 19.05.2017 has been issued extending the benefit of disability pension to Armed Forces Personnel, who were retired, discharged from service even before 01.01.2006.- From the above, it is clear that disability of the appellant was aggravated by military service and percentage of disability was 30%. -Release Medical Board (Annexure A/14) adjudicated the appellant’s disability at 30%, which disability has been held to be permanent in nature. The appellant who appears in person makes a statement that he has not taken any lump sum compensation in lieu of disability. We have no reason not to accept his statement. - The appellant thus fulfils all the three conditions for grant of disability pension. In above view of the matter, we are of the view that appellant is fully covered by the order of the Government dated 19.05.2017 Appropriate steps be taken in accordance with Para 5 for grant of disability pension. We, however, make it clear that it shall always be open for the respondents to assess the percentage of the disability of the appellant by convening a Medical Board to find out whether the disability percentage is 20% or less. It will be open to the respondents to discontinue the claim from any future date when they on the basis of any medical report are of the view that the disability has gone below 20%

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 3101-3102 OF 2015
EX. LT. COL. R.K. RAI …APPELLANT
VERSUS
UNION OF INDIA & ORS. …RESPONDENTS
J U D G M E N T
ASHOK BHUSHAN, J.
These two appeals have been filed by the appellant
challenging the orders dated 20.09.2013 passed by the
Armed Forces Tribunal Regional Bench at Mumbai rejecting
Petitioner’s O.A. No. 25 of 2013 and the order dated
11.06.2014 rejecting the Review Application No. 4 of
2014. The brief facts of the case are:
The appellant was commissioned in the Regiment of
Artillery on 24.12.1982. In the year 1987, while
2
performing the duty of Observation Post Officer, the
appellant fell ill, who was treated in Military
Hospital, Devlali. Medical Board was held on
21.01.1988, when he was placed on low medical
category. Medical Board opined that disability was due
to stress and strain of services. On 27.09.2000, the
Medical Re-categorization Board assessed the
appellant’s disability as 50%. In the year 2002,
appellant was posted at Zakhama in Nagaland. Medical
Re-categorization Board held on 20.09.2002 again
assessed the medical disability of the appellant as
50%. On 06.02.2003, appellant applied for premature
retirement. Appellant was retired on 29.07.2003.
Release Medical Board held on 31.03.2004, found that
the appellant was suffering from primary Hypertension,
aggravated due to stress and strain of military
service. Disability was assessed at 30%. The
appellant filed O.A. No. 25 of 2013 in the Armed
Forces Tribunal, Regional Bench, Mumbai, where he
prayed for following reliefs:-
“Relief Sought
In view of the facts mentioned in this
Original Application, the Applicant most
3
respectfully prays for the following reliefs:-
A. That the Hon’ble Court be pleased to
direct Respondent No.1 to forward medical
disability pension claim to Respondent
No.2 directing the latter to grant medical
disability pension to the Applicant at the
earliest.
B. That the Hon’ble Court be pleased to pass
necessary direction to Respondent No.2 to
release the medical disability pension in
respect of the Applicant at the earliest.
C. That the Hon’ble Court be pleased to pass
necessary direction to Respondent No.3 to
grant “AGI Disability” as applicable to
the Applicant at the earliest.
D. That the Hon’ble Court be pleased to grant
such other and further reliefs as deemed
fit in the interest of justice.”

The Armed Forces Tribunal vide its judgment dated
20.09.2013 rejected the application. The Tribunal
relying on Regulation 48 and Regulation 50 of Pension
Regulations for the Army, 1961 held that those, who
took voluntary retirement are not entitled for
disability pension. The Tribunal, however, noticed
that on the basis of Sixth Pay Commission Report, an
officer, who seeks voluntary retirement on or after
01.01.2006 and whose disability is 20% or more, either
attributable to or aggravated by military service,
4
will be entitled to disability pension. However, that
benefit cannot be granted to the Applicant, because he
had taken voluntary retirement much before the cut off
date of 01.01.2006. The appellant filed a Review
Petition before the Tribunal relying on few judgments
of this Court as well as judgments of Armed Forces
Tribunal, Principal Bench, New Delhi in O.A. No. 139
of 2009, Lt. Col. P.K. Kapur (Retd.) Vs. Union of
India. In the Review Petition, the petitioner relied
on the judgment of Principal Bench which held that the
cut off date making difference between the personnel,
who retired before 01.01.1996 and after 01.01.1996, is
discriminatory and arbitrary. The Tribunal relying on
the judgment of this Court in Union of India Vs. Ajay
Wahi (2010) 11 SCC 213 rejected the Review Petition.
Aggrieved against dismissal of his O.A. as well as the
Review Petition, the appellant has filed these
appeals.
2. The appellant, Ex. Lt. Col. R.K. Rai has appeared in
person. We have also heard learned counsel appearing
for the Union of India as well as learned counsel
appearing for the respondent No.5.
5
3. The appellant appearing in person contends that in
view of the judgment of Armed Forces Tribunal,
Principal Bench, New Delhi in O.A. No. 139 of 2009,
Lt. Col. P.K. Kapur (Retd.) Vs. Union of India and
judgments of Armed Forces Tribunal, Regional Bench,
Chandigarh as well as judgment of Regional Bench,
Chennai, those officers, who have taken voluntary
retirement even prior to 01.01.2006 have been granted
the disability pension. He submits that the
Principal Bench, New Delhi in O.A. No. 139 of 2009
has already struck down Para 2.1 of the Government
Circular dated 04.05.2009. The appellant submits
that judgment of Principal Bench, New Delhi in O.A.
No. 336 of 2011, Maj. (Retd.) Rajesh Kumar Bhardwaj
Vs. Union of India & Ors. dated 07.02.2012 has been
accepted by the Government of India and now an order
dated 19.05.2017 has been issued extending the
benefit of disability pension to Armed Forces
Personnel, who were retired, discharged from service
even before 01.01.2006. He submits that in view of
the order dated 19.05.2017, the appellant is entitled
for disability pension. He further submits that in
6
his original application, he has prayed for relief to
grant “AGI Disability”, which has not been
considered.
4. Learned counsel for the Union of India refuting the
submission of the appellant contends that against one
of the judgments relied on by the appellant of the
Armed Forces Tribunal; S.L.P. is pending in this
Court. He further submits that from the order dated
19.05.2017, it is clear that the grant of disability
pension to Pre-2006 retired/ discharged Armed Forces
Personnel is subject to conditions as laid down in
Para 3 and the appellant does not fulfil the
conditions mentioned therein.
5. Learned counsel for the respondent No.5 submits that
no notice was served to respondent No. 5 before the
Armed Forces Tribunal in O.A. No. 25 of 2013, hence
no one could appear on behalf of the respondent No.5
and file the objection. It is submitted on behalf of
respondent No.5 that there is no material available
with regard to the claim of the appellant on “AGI
Disability”. He submits that the order of the
Tribunal does not even indicate that the AGI
7
Disability claim was not even argued before the
Tribunal. It was submitted by learned counsel for
respondent No.5 that the appellant is not entitled
for any “AGI Disability” and under the Army Group
Insurance, fund whatever was due to the appellant has
already been paid.
6. We have considered the submissions of the appellant
and the learned counsel appearing for the Union of
India as well as respondent No.5 and have perused the
records.
7. A copy of the order dated 19.05.2017 issued by the
Government of India, Ministry of Defence has been
submitted by the appellant to the Court, a copy of
which has also been given to the learned counsel for
the respondents. The Government of India, Ministry of
Defence having accepted the claim of those officers,
who took voluntary retirement prior to 01.01.2006,
the claim of the appellant needs to be examined in
view of the aforesaid order. It is useful to extract
the entire Government Order dated 19.05.2017, which
is to the following effect:-
8
“No. 16(05)/2008/D(Pension/Policy)
Government of India
Ministry of Defence
Department of Ex-Servicemen Welfare
New Delhi-110011
Dated 19th May 2017
To,
The Chief of the Army Staff
The Chief of the Naval Staff
The Chief of the Air Staff
Subject: Grant of Disability Element to Armed
Forces Personnel who were retained in service
despite disability attributable to or aggravated
by Military Service and subsequently proceeded on
premature/voluntary retirement prior to
01.01.2006.
Sir,
The undersigned is directed to refer to this
Ministry's letter No.16(5)/2008/ D(pen/Policy)
dated 29th September 2009 wherein disability
element/war injury element have been allowed to
such Armed Forces Personnel who were retained in
service despite disability and retired/discharged
voluntary or otherwise in addition to retiring/
service pension or retiring/ service gratuity,
subject to condition that their disability was
accepted as attributable to or aggravated by
military service and had foregone lump sum
compensation in lieu of that disability.
2. In terms of Para- 3 of the above referred
letter the provisions stated above are applicable
to the Armed Forces Personnel who were,
retired/discharged from service on or after
01.01.2006. Armed Force Tribunal (Principal
Branch) New Delhi in OA No. 336 of 2011 vide
their order dated 07.02.2012 have struck down
Para-3 of this Ministry's above letter.
3. The issue of extension of above benefit to the
Pre-2006 retired/discharged Armed Forces
Personnel, who were retained in service despite
9
disability attributable to or aggravated by
military service, was under active consideration
of Government. Now, the President is pleased to
decide that all Pre- 2006 Armed Forces Personnel
who were retained in service despite disability
and retired voluntarily or otherwise will be
allowed disability element/war injury element in
addition to retiring/ service pension or
retiring/ service gratuity, subject to the
condition that their disability was accepted as
attributable to or aggravated by military service
and had foregone lump sum compensation in lieu of
that disability. Further, concerned Armed Forces
Personnel should still be suffering from the same
disability which should be assessed at 20% or
more on the date of effect of this letter.
4. Implementation of these orders is expected to
be arduous and challenging. Documents like
Medical Board proceedings, retention of the
personnel in service despite disability, option
of individual foregoing lump sum compensation and
non-payment of lump sum compensation would be
required in all cases which may not be available
at the end of Pay Accounting Authorities/ Record
offices and Pension sanctioning authorities
readily. In such cases, pensioners/ family
pensioners may be asked to produce the copies of
relevant documents to the Executive authorities
in support of their claims.
5. The claim for grant of disability element/ war
injury element in affected cases will be
submitted to the PSA concerned by PCDA(O) Pune/
NPO/AFCAO/ Record office along-with copy of
medical board/ fresh medical board proceedings
showing extent of disability applicable as on
date of effect of this letter in respect of
Commissioned officers/ JCOs/ ORs. It win be
responsibility of PCDA(O) Pune/ NPO/ AFCAO and
Record office to confirm payment/ non- payment of
lump sum-compensation in lieu of disability
element to Commissioned officers and JCOs/ ORs. A
sanction showing extent of disability and its
attributability/ aggravation due to Military
service in terms of MOD letter No.
4684/DIR(PEN)/2001 dated 14.08.2001 would be
issued by the Service HQrs in case of
10
Commissioned Officers and sanction would be
issued by IO/ C Record office in case of JCOs/
ORs.
6. The corrigendum PPOs granting disability
element/ war injury element in all affected cases
will be issued by respective Pension Sanctioning
Authorities.
7. The provisions of this letter shall take
effect from 01.01.2006.
8. Pension Regulation of all the three services
will be amended in due course.
9. This Issues with the concurrence of Finance
Division of this Ministry their letter I.D. No.
10(3)2012/FIN/PEN dated 19th May 2017.
10. Hindi version will follow.
Yours faithfully
Sd/-
(Manoj Sinha)
Under Secretary to the Government of India”
8. Para 3 of the Government Order provides that the
extension of benefits to Pre-2006 retired is on
following conditions:-
(a) Their disability was accepted as
attributable to or aggravated by military
service
(b) They had foregone lump sum compensation in
lieu of that disability.
(c) The concerned Armed Forces Personnel
should still be suffering from the same
disability which should be assessed at 20%
or more on the date of effect of this
letter.
11
9. The appellant has relied on the Release Medical Board
proceeding dated 31.03.2004 which has been brought on
record as Annexure A/14. A perusal of the opinion of
the Medical Board as contained in Part 5 of the
document, makes it clear that opinion of the Medical
Board is that Primary Hypertension of the appellant
is aggravated by Army service and the reasons given
are that “due to stresses & strains of military
service”. It is useful to extract opinion of Medical
Board in Part V, which is to the following effect:-
Part V
OPINIONS OF THE MEDICAL BOARD
(Not to be communicated to the individual)
1. Clinical relationship of the disability with service
condition or otherwise
Disability Attributab
le to
service
(Y/N)
Aggravated
By Service
(Y/N)
Not
connected
with
service
(Y/N)
Reason/
case
specific
conditions
and period
in service
(a)
Primary
HYPERTENSI
ON
No YES No Due to
stresses &
strains of
mil
service.
10.Another part of the same opinion of Medical Board,
which is with regard to percentage of disablement, is
12
to the following effect:-
1. What is percent degree of disablement as compared
with a healthy person of the same age and sex?
(Percentage will be expressed as Nil of as follows):-
1-5%, 6-10%, 11-14%, 15-19% and thereafter in multiples
of ten from 20% to 100%.
Disability
assessment
(As numbered
in
disabilities
with Question
1 part II
Percentage of
disablement
Probable
duration of
this degree
of
disablement
Composite for
all duration
(Max 100%)
(a) Primary 30% Permanent 30%
(b)
(c)
(d) Sd/-x x x x
MANOJ
PAPRIKAR
Maj.
Sd/- x x x x
(Ms. Vandana
Negi)
Lt. Col.
11.From the above, it is clear that disability of the
appellant was aggravated by military service and
percentage of disability was 30%. Para 5 of the
Order of the Government dated 19.05.2017 provides
that claim for grant of disability element in
affected cases will be submitted to the PSA concerned
by PCDA(O) Pune/ NPO/AFCAO/ Record office along-with
copy of medical board/ fresh medical board
proceedings showing extent of disability applicable
as on date of effect of this letter in respect of
13
Commissioned officers/ JCOs/ ORs. Para 7 of the
order mentions that “The provisions of this letter
shall take effect from 01.01.2006.”
12.Thus, the disability for the purposes of the order
dated 19.05.2017 has to be looked into on the date of
01.01.2006. The said conclusion is also decipherable
from Para 3 of the order.
13.From the above, it is clear that Release Medical
Board (Annexure A/14) adjudicated the appellant’s
disability at 30%, which disability has been held to
be permanent in nature. The appellant who appears in
person makes a statement that he has not taken any
lump sum compensation in lieu of disability. We have
no reason not to accept his statement.
14. The appellant thus fulfils all the three conditions
for grant of disability pension. In above view of
the matter, we are of the view that appellant is
fully covered by the order of the Government dated
19.05.2017. Appropriate steps be taken in accordance
with Para 5 for grant of disability pension. We,
however, make it clear that it shall always be open
14
for the respondents to assess the percentage of the
disability of the appellant by convening a Medical
Board to find out whether the disability percentage
is 20% or less. It will be open to the respondents
to discontinue the claim from any future date when
they on the basis of any medical report are of the
view that the disability has gone below 20%.
15.In so far as the case of “AGI Disability” as prayed
by the appellant before us, a perusal of the order of
the Tribunal rejecting the claim does not indicate
that the said claim was pressed before the Tribunal.
In the Review Petition also, the appellant does not
appear to have pressed the said claim. We, thus, do
not find it necessary to consider the said claim in
these appeals. However, liberty is reserved to the
appellant to file a Review Petition before the
Tribunal, in event, the claim was pressed and not
considered.
16.In result, the civil appeals are allowed. Judgment
and order of the Tribunal dated 20.09.2013 and
11.06.2014 are set aside. The respondents are
directed to process the claim of the appellant as per
15
the Government order dated 19.05.2017 in light of the
observations as made above.
..........................J.
( A.K. SIKRI )
..........................J.
 ( ASHOK BHUSHAN )
NEW DELHI,
FEBRUARY 16, 2018.

Corporate law - Education Act- taking over primary schools by state govt. which are intend to be closed by the management = whether the Notification issued by State of Kerala taking over the aided schools, which were managed by the appellants, is valid = 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 Government. ; Payment of compensation for taking over schools intended to close - whether sec.15 of Education Act overridden the compensation Act 2013 - No = 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.

1
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
2
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
3
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.”
4
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
5
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
6
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
7
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
8
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
9
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
10
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
11
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
12
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
13
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.
14
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
15
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
16
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
17
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).”
18
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
19
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
23
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
24
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.

criminal law - commission of murder in the course of dacoity - life imprisonment reduced to 10 years as he killed with his arms/hands only but not KILLED with ARAMS = the offence under Section 396 IPC is to be viewed with seriousness, especially, when the dacoits are armed. But in the case in hand, the accused were not armed. Accused Babu @ Nawab Sahib is alleged to have sat on deceased Muthukrishnan and pressed his nose and mouth and is alleged to have tightened his neck with the rope. The occurrence was of the year 2002. Considering the long lapse of time and the facts and circumstances of the case, the sentence of imprisonment for life is modified as ten years as directed by the trial court

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.697-98 OF 2012
SHAJAHAN …Appellant
Versus
STATE REP. BY INSPECTOR OF POLICE ...Respondent
WITH
CRIMINAL APPEAL NO.481 OF 2015
BASHEER AND ANOTHER …Appellants
Versus
STATE REP. BY INSPECTOR OF POLICE ...Respondent
J U D G M E N T
R. BANUMATHI, J.
These appeals arise out of the common judgment passed by
the High Court of Madras in Criminal Appeal Nos. 69, 1096 and 1097
of 2006 allowing the appeal preferred by the State thereby enhancing
the sentence of imprisonment from ten years to imprisonment for life
for the conviction under Section 396 IPC.
2. Briefly stated case of the prosecution is that on the intervening
night of 13/14.11.2002 at about 01.30 a.m., the appellants accused
Basheer (A1), Shajahan (A2) and Babu @ Nawab Sahib (A4) along
1
with two other accused Raja Mohammad (A3) and Balu @
Balasubramanian (A5) with common intention to commit robbery in a
Pawn Broking shop under the name of Peri owned by PW-1
Muthaiyah. In the course of committing robbery, Shajahan (A2) is
alleged to have tightly held the legs of deceased Muthukrishnan who
was sleeping inside the shop and Babu @ Nawab Sahib (A4) is
alleged to have sat on his chest and constricted his neck and tied the
jute rope around the neck of Muthukrishnan and strangled him to
death. Other accused robbed jewellery about 4.788 kg. of gold and
5.595 kg. of silver total worth about Rs.12,00,000/-. On 13.11.2002 at
about 05.30 a.m., Chellam-PW-4 employed as the sweeper at the
Pawn shop came to the house of PW-1 and informed him that
Muthukrishnan was found dead in his shop. PW-1 lodged the
complaint in Mandharakuppam Police Station, based on which, police
had registered a case in Crime No.257 of 2002 under Sections 457,
380 and 302 IPC. PW-37-SHO had taken up the investigation. On
06.02.2003 at about 11.00 p.m. Raja Mohammad (A3) was arrested
near Panrutti bus stand and his confession statement was recorded
in the presence of Vasan-PW-15, based on which, a sum of
Rs.46,000/- was recovered from Raja Mohammad (A3). Confession
2
statement of accused Raja Mohammad led to recovery of thirty pair of
silver anklets, golden necklace and chain from Noorudheen who was
identified by accused Raja Mohammad under Ex.P21. Confession
statement of accused Raja Mohammad led to further recovery of
silver anklets, golden rings, necklace and totally twelve items of
jewels from KVM Jewellery at Kallakurichi under Ex.P23. Confession
statement of accused Raja Mohammad also led to recovery of
seventeen pair of silver anklets, twenty pair of silver pattadai anklets
and a golden chain from his house at Pudupet in Vridhachalam.
3. Accused Raja Mohammad took the police and PW-15 to
Alichakudi village and on being identified by him, Babu @ Nawab
Sahib (A4) was arrested. Based on the confession statement of
accused Babu @ Nawab Sahib, seventeen items of jewels were
recovered from the house of his mother's sister under Ex.P28. Based
on the confession statement of Babu @ Nawab Sahib (A4), the police
went to Mumbai where numbers of items of jewels were recovered
from the house of his uncle and also from a jewellery shop named
Panchaseel Jewellery.
4. On 06.02.2003 at wee hours at about 01.30 a.m. appellants
Basheer (A1) and Shajahan (A2) were proceeding on a TVS-50
3
motor cycle and on being intercepted by the police, the appellants
started running and the police caught hold of them. Based on the
confession statements of accused Basheer and Shajahan, jewels
kept in the cover on the petrol tank of the said TVS-50 vehicle, were
recovered by the police. On the basis of the information from the
informers, PW-37 arrested Balu @ Balasubramanian (A5) in front of
his house at Meyapalayur village on 08.02.2003 at about 04.00 a.m.
His confession statement led to recovery of golden jewels from a
jewellery shop at Chidambaram. Confession statement of accused
Balu @ Balasubramanian further led to recovery of gold jewels from
his house (Ex.P33). On completion of investigation, chargesheet was
filed against the accused under Sections 457, 395, 396 and 302 read
with 34 IPC.
5. In the trial court, prosecution has examined thirty seven
witnesses, including PW-1-owner of the Pawn shop, PW-2 and PW-3
working under PW-1 and other witnesses. Upon consideration of
evidence, the trial court convicted all the five accused inter alia under
Section 396 IPC read with Section 34 IPC and sentenced them to
undergo rigorous imprisonment for ten years. The trial court held that
4
in view of the conviction of the accused under Section 396 IPC,
conviction of the accused under Section 302 IPC was not necessary.
6. Being aggrieved by the conviction, accused Shajahan and Raja
Mohammad filed appeals before the High Court which came to be
dismissed. In the appeal filed by the State, for conviction under
Section 396 IPC, the High Court enhanced the sentence of
imprisonment from ten years to imprisonment for life. The High Court
did not go into the question of conviction of the accused under
Section 302 IPC.
7. We have heard the learned counsel for both the parties and
perused the materials on record.
8. There is clear and cogent evidence against accused Raja
Mohammad and Babu @ Nawab Sahib as to their involvement in the
commission of dacoity by the evidence of PW-15 and PW-17 and by
recovery of various items of jewels. The jewels so recovered from the
accused were identified by the owner of the Pawn shop (PW-1) and
PWs 7 to 14 who pledged the jewels with PW-1. Evidence of PW-1 is
further corroborated by the registers maintained in his Pawn shop to
show that those items of jewels were pledged in his Pawn shop. The
5
conviction of the appellants Raja Mohammad and Babu @ Nawab
Sahib under Section 396 IPC is unassailable.
9. Accused Basheer and Shajahan were arrested in the presence
of PW-21-Anbalagan and PW-22-Vijayarangan who partially turned
hostile. In his evidence, PW-21 stated that two persons were coming
on the TVS-50 and on being intercepted by the police, they started
running and those persons were chased and were caught by the
police and the police recovered jewels from the cover kept on the
petrol tank of the said vehicle. Though PWs 21 and 22 have spoken
about the two persons and recovery of jewels from the said two
wheeler, they have not identified accused Basheer and Shajahan. As
observed by the trial court, case of the prosecution is not discredited,
merely because PWs 21 and 22 have turned hostile so far as
identification of accused. As pointed out by the trial court, evidence
of PWs 21 and 22 is to be read along with the evidence of
Investigating Officer (PW-37) who has clearly spoken about Basheer
and Shajahan were proceeding on the two wheeler TVS-50 and also
spoken about the arrest and recovery of jewels. The jewels recovered
from Basheer and Shajahan were also identified by PW-1-owner of
the Pawn shop. The fact that PWs 21 and 22 turned hostile does not
6
affect the prosecution case as to the involvement of Basheer and
Shajahan in the commission of the offence of dacoity. Section 396
IPC prescribes punishment for dacoity with murder. In the course of
commission of dacoity, if a dacoit commits murder, all his companions
who are conjointly committing dacoity, are liable to be convicted
under Section 396 IPC, although they may have no participation in
the murder beyond the fact of participation in the dacoity. The
obligation of the court in the matter of imposing the sentence - "death
or imprisonment for life" is in the same sequence both for Sections
302 IPC and 396 IPC. Though the offence under Section 396 IPC is
to be viewed with seriousness, for the conviction under Section 396
IPC, larger discretion is vested with the court insofar as there is
possibility of imposing a penalty lesser than death or imprisonment
for life for the conviction under Section 396 IPC.
10. Placing reliance upon Dinesh alias Buddha v. State of
Rajasthan (2006) 3 SCC 771, the High Court took the view that
commission of murder in the course of dacoity is to be viewed with
seriousness. We are also of the view that the offence under Section
396 IPC is to be viewed with seriousness, especially, when the
dacoits are armed. But in the case in hand, the accused were not
7
armed. Accused Babu @ Nawab Sahib is alleged to have sat on
deceased Muthukrishnan and pressed his nose and mouth and is
alleged to have tightened his neck with the rope. The occurrence
was of the year 2002. Considering the long lapse of time and the
facts and circumstances of the case, the sentence of imprisonment
for life is modified as ten years as directed by the trial court.
11. While maintaining the conviction under Section 396 IPC, the
sentence of imprisonment imposed upon the appellants-Basheer,
Shajahan and Babu @ Nawab Sahib is modified as ten years of
imprisonment and the appeals are partly allowed. Since the
appellants are stated to be in custody for more than ten years, the
appellants are ordered to be released forthwith, if not required in any
other case.
………………………..J.
 (RANJAN GOGOI)
..……………………..J.
 (R. BANUMATHI)
New Delhi;
February 16, 2018
8

public interest litigation by political rival on mere allegations = No interference with decisions of the Executive without there being clear issue of genuine public interest. = There is no doubt about the legal position enunciated in the said decisions cautioning the Court against interference with decisions of the Executive without there being clear issue of genuine public interest. However, they do not create a jurisdictional bar, if conscience of the Court is pricked in a given case. A petition under Article 32, without clear element of public interest, cannot be entertained at the instance of a political rival merely on account of an alleged procedural irregularity in the decision making which can be challenged at appropriate forum by the aggrieved party.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.720 OF 2016
SWARAJ ABHIYAN AND ANR. …Petitioners
VERSUS
UNION OF INDIA AND ORS. …Respondents
WITH
WRIT PETITION (CIVIL) NO.753 OF 2016
T.S. SINGHDEO AND ANR. …Petitioners
VERSUS
UNION OF INDIA AND ORS. …Respondents
WITH
WRIT PETITION (CIVIL) NO. 973 OF 2016
RAKESH KUMAR CHOUBEY …Petitioner
VERSUS
THE STATE OF CHHATTISGARH AND ORS. …Respondents
J U D G M E N T
ADARSH KUMAR GOEL, J.
1. This order will dispose of Writ Petition (Civil) Nos.720, 753
and 973 of 2016. All the three writ petitions involve the same
issue. Writ Petition (Civil) No. 720 of 2016 has been filed by
1
Swaraj Abhiyan, a political party along with petitioner No. 2 who is
said to be an office bearer of a N.G.O., seeking direction for
investigation into the purchase of A-109 power E-helicopter by the
State of Chhatisgarh and also into the alleged bank accounts in
British Virgin Islands (UK) linked with the son of Chief Minister of
Chhattisgarh. The said son of the Chief Minister is not a party to
the petition.
2. The plea set out in the petition is that the State of
Chhattisgarh entered into an agreement dated 26th October, 2017
with Sharp Ocean Investments Limited and acquired a helicopter
without following the due process and caused loss to the
government. It is also alleged that an account was opened by the
son of the Chief Minister 6 months after the bulk payment was
made by the Government for the said purchase. The database
compiled by the International Consortium of Investigative
Journalists (ICIJ) shows Abhishak Singh as the shareholder of
Quest Heights Limited (incorporated in British Virgin Islands on
3.7.2008) and Sharecorp Limited. The CAG report stated that loss
2
of Rs.65 lakhs was caused to the exchequer in the procurement of
the helicopter.
3. Writ Petition (Civil) No.753 of 2016 has been filed jointly by
the leader of the opposition of the Chhattisgarh Assembly and a
publisher of a journal seeking direction to conduct enquiry into
the helicopter purchase deals of the States of Chhattisgarh,
Jammu & Kashmir, Punjab, Rajasthan and Jharkhand.
4. Writ Petition (Civil) No.973 of 2016 has been filed by Mr.
Rakesh Kumar Choubey claiming to be a social activist seeking
direction to conduct an enquiry into the British Virgin Island
Companies of Abhishak Singh and the links of these companies in
receiving kickbacks from Sharp Ocean Investments, OSS Air
Management Pvt. Ltd. and Agusta Westland and also enquiry into
the procurement of the helicopter by the State of Chhattisgarh.
5. A copy of the first petition was directed to be served on the
Central Agency so that the Union of India could put in
appearance. As recorded in order dated 2nd December, 2016,
3
learned Attorney General raised an objection that the issue was of
political nature in the guise of a public interest litigation to settle
political scores. Again, vide order dated 19th April, 2017, this
Court observed that the said objection of the Attorney General
was required to be heard first.
6. However, since on a later date, this Court was of the view
that the objection of the Attorney General did not bar the
jurisdiction of this Court and the matter may be required to be
considered on merits, the State of Chhattisgarh filed counter
affidavit, produced the original files and also filed photocopies of
the same. A rejoinder affidavit has also been filed.
7. We have heard Shri Prashant Bhushan appearing for the
petitioners in Writ Petition (Civil) Nos. 720 and 753 of 2016, Shri
Sanjay R. Hegde, Senior Advocate, appearing for the petitioner in
Writ Petition (Civil) No. 973 of 2016, Shri Mahesh Jethmalani,
Senior Advocate for the State of Chhattisgarh, Shri Tushar Mehta,
ASG and Ms. Pinky Anand, ASG for the Union of India.
4
8. We have perused the record and considered the submission
of the petitioners that the helicopter was purchased by
Chhattisgarh Government by floating a sham tender and that in
the process loss was caused to the public exchequer. We have
also considered the further contention that Abhishak Singh, son of
Chief Minister of Chhattisgarh could be the beneficiary in the
transaction.
9. Shri Jethmalani explained the factual position with reference
to the record. He submitted that in the year 2002, the State of
Chhattisgarh had purchased a Eurocopter (EC135) which crashed
on 14th July, 2007 and became unusable. Before the sad crash, on
19th December, 2006, the Chief Pilot and Quality Control Manager
of the Aviation Department of the State recommended purchase
of a “twin engine Helicopter” which can carry at least four
passengers with maximum fuel load across the State without
refueling mid-way and still having enough power margin, efficient
performance and least maintenance cost. This was to meet the
security concerns of the State affected by extremist’s violence.
This proposal was also on account of high cost of maintenance of
5
the existing helicopter. The State, on 6th January, 2007,
constituted a three-member Committee comprising the Additional
Chief Secretary (Aviation), the Principal Secretary to the Chief
Minister and the Principal Secretary (Finance) to take an informed
decision in the matter. The Committee, on 12th January, 2007,
recommended purchase of Agusta A-109 Power helicopter.
Correspondence was exchanged between the State and the
Agusta. The Agusta, vide letter dated 27th January, 2007,
informed that the company could give delivery of A-109 Power
helicopter by middle of 2009. The price will be in the region of US
$ 6.0 million. However, if the State wanted early delivery, the
company had already pre-sold some helicopters to their dealers of
the region M/s. Sharp Ocean Investments Limited, Hong Kong who
could be contacted. The service provider of the company in India
was Mr. V. Krishnan, who could assist in this regard.
10. Accordingly, a delegation of the State went to Hong Kong
and negotiated with M/s. Sharp Ocean Investments Limited, Hong
Kong and gave its report on 15th February, 2007 to the effect that
the helicopter could be supplied on negotiated terms for US $ 6
6
million in six months. Thereafter, a note was put up on 4th April,
2007 by the Director of Aviation that efforts should be first made
to acquire the helicopter at 2005 price (about Rs.24 crores).
Since this proposal could not materialize as vide letter dated
5.4.2007, the OSS Air Management Pvt. Ltd. that price of US $ 6
million + services was final price, global tender was published.
Three proposals were received and the High Level Committee
after evaluation on 7th July, 2007, recommended acceptance of
tender submitted by M/s. Sharp Ocean Investments Limited,
subject to delivery being made by December, 2007. Accordingly
a decision was taken and purchase order was placed and
thereafter delivery was effected. Payments were made as
follows:
“(a) USD 1,324,000 to Sharp Ocean (i)n
consideration of procuring the sale of the
Helicopter by Agusta to the Purchaser
and to assign, transfer and set over to
the Purchaser, Sharp’s rights under the
Sale Contract.
(b) USD 1,573,800 to Sharp Ocean as
reimbursement of the monies “that
Sharp has already paid ….. as part
consideration towards the purchaser of
the Helicopter to Agusta in accordance
with the Sale Contract.
7
(c) USD 3,672,200 to Agusta as the balance
amount at the time of the scheduled
acceptance of the helicopter.”
11. In support of the above, following documents have been
referred to :
 Document dated 19th
 December, 2006
COMPARATIVE STATEMENT OF LIGHT TWIN ENGINE HELICOPTER
S.N
o.
PARAMETER UNITS A-109
POWER
B-427 EC-135 TI
1. Delivery
Schedule
Months 18-24 12-18 18-24
2. No.of Aircraft in
India
04 Nil 01
3. Maintenance
facility in India
Available Nil Nil
4. Spares
Inventory in
India
Held Not held Not held
5. Technical
trained
manpower
Yes No Very less
6. Engine Power SHP 900 800 826
7. Engine Life HRS 3500 3000 3000
8. Operation,
Maintenance
and customer
support
Available Not
available
Not
available
9. Operation at
Night
Yes No Yes
 Document dated 29th
 December, 2006
“Presently only three Helicopter are leading in the market
in the light twin engine category which can be utilized by
State Govt. for VIP operation.
1. Agusta A 109
2. EC-135
8
3. Bell-427
Out of these three Helicopters EC-135 is already being used
by Govt. of Chhattisgarh has power limitation and excessive
maintenance cost while operating in Indian environmental
conditions. Bell 427 also has certain limitations for the kind
of operation required for our State Govt. Bell 427 is a VFR
category Helicopter, can operate only in day light and
cannot fly after sunset.
Therefore, considering suitability of Helicopter for VIP
operation for State Govt. and technical data performance
Agusta A-109 is most suitable for State Govt. VIP operation.
Technical information comparison statement is submitted
for you kind reference please.
Sd/-
29.12.06
Gauri Shanker Godara
Sr. Engineer (Helicopter)”
 Document dated 2nd
 January, 2007
“… … …As you are aware, the world helicopter market is
extremely tight and manufacturers including Agusta are not
in a position to deliver a light twin engine helicopter before
January, 2010. However, we, as Service Providers for
Agusta in India are in a position to secure the delivery of a
A-109 Power helicopter in 6 seat VIP Elite configuration for
a confirmed delivery in August/September 2007 itself from
their distributors M/s. Sharp Ocean Investments Limited,
Hong Kong who have pre-bought this machine. The
purchase price will be as follows:
Amount payable to Agusta Westland, Italy US $
3,673,000
Amount payable to M/s. Sharp Ocean
Investment Ltd., Hong Kong US $ 2,642,000
Total amount payable US $ 6,315,000
______________
Payment Schedule:
Down payment of US $ 2,642,000 to M/s. Sharp Ocean
Investments Limited, Hong Kong at the time of order
placement / contract signature on or before 31st January,
9
2007. The balance amount of US $ 3,673,000 will be
payable to Agusta S.p.A., Italy in August 2007 at the time of
“acceptance” of the helicopter by the Government of
Chhattisgarh in Milan, Italy.
Invoice Price
Payable to manufacturer – Agusta Westland, Italy towards:
Price of the Helicopter US $ 5,131,000
Services* US $ 115,000
US $ 5,246,000
Payable to M/s. Sharp Ocean Investments
Ltd Hong Kong towards:
Pre-booking cost US $ 1,069,000
Total US $ 6,315,000
===========
* includes dis-assembly; packing and preservation;
freight; insurance; re-assembly and test flight in India
prior to handing-over
The helicopter will be invoiced and delivered by Agusta
Westland directly to the Government of Chhattisgarh.
The confirmed order with down payment will have to be
released on or before 31st January, 2007.”
 Document dated 13th
 March, 2007
“Agusta Westland A
Finmeccanica Company
The Director Aviation
Government of Chhattisgarh
RAIPUR
India
Dear Sir:
10
We thank you very much for the kind courtesies
extended to our Service Providers representative in
India Mr. V. Krishnan when he called on you on 22nd
December, 2006 to make a presentation on the
suitability of our helicopters the AW 139 and the A 109
Power for your requirements.
In this regard, we are pleased to confirm the following
information in response to your e-mail today:
(a) The earliest delivery we can offer from the
Company for the A109 Power is today middle
2009.
(b) The ROM price for the Elite configuration you are
looking for will be in the region of US $ 6.0 Million.
(c) The initial deposit at the time of booking will be
US $ 100,000. The down payment will be
equivalent to 30% payable within 60 (sixty) days
from the date of contract signature or to the
import license obtaining whichever come first.
Final payment of 70% will be at the time of
“acceptance” of helicopter at Milan.
If you are looking for an early delivery, please
note that we have pre-sold some helicopters to our
dealers for your region M/s. Sharp Ocean Investments
Limited, 1402, One Duddell Street, Central, Hong Kong
who will be in a position to offer you earlier deliveries of
the helicopters booked by them on behalf of their
customers in India. Our Service providers
representative in India Mr. V. Krishnan (Mob. + 91
98183 55544) can assist you in this regard.
Thanking you
Yours faithfully,
Sd/-
Umberto Fontanella
Head of Region
Agusta Westland”
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Report of the CAG
“Having failed to sign the contract by the due date, the
Government floated (May 2007) a global tender for
purchase of Agusta A 109 Power helicopter. Out of the five
bids received, the Cabinet approved (August 2007) the bid
of the same Hong-Kong based dealer, who had offered to
supply the helicopter earlier, and signed (October 2007)
the agreement for US $ 65.70 lakh (Rs.25.96 crore as per
prevailing exchange rates). The supply of helicopter was
received in December 2007 and payment of Rs.25.96 crore
was made. Thus, due to avoidable delay in taking
decision on signing the contract by due date for purchase
of new helicopter at the first instance, the Government had
to purchase the same helicopter model from the same
dealer at an extra cost of Rs.65 lakh (Rs.25.96 crore –
Rs.25.31 crore) as detailed in Appendix-2.1”
12. The objection on behalf of the petitioners is that in all the
three offers, it was the same person who negotiated. Other
helicopters were not considered. Excess price was paid to benefit
the son of the Chief Minister. Question is whether the allegations
are substantiated. Even though the submission initially appeared
to require consideration on account of which the State was
directed to produce the record and explain the position after due
consideration, we find it difficult to accept the same.
13. Son of the Chief Minister is not personally a party. Disclosure
in Panama Papers is a matter which is still under investigation by
12
Multi Agency Group constituted by the Government of India on 4th
April, 2016 which is to give its report to the Special Investigating
Team constituted by this Court vide order dated 4th July, 2011 in
Writ Petition (Civil)No. 176 of 20091
.
14. On merits, as depicted in the comparative statement dated
19th December, 2006 signed by the Senior Helicopter Engineer
and Chief Pilot (H), on comparison of A-109 Power, B-247 and
EC-135 T1, parameters of Delivery Schedule, Number of Aircrafts
in India, Maintenance facility in India, Spares Inventory in India,
Technical trained manpower, Engine Power, Engine Life,
Operation, Maintenance and customer support and Operation at
Night were in favour of A-109 Power. Letter dated 2nd January,
2007 addressed to the Director, Aviation, Government of
Chhattisgarh shows that Agusta itself was not in a position to
deliver the light twin engine helicopter before January, 2010.
However, it stated that the same could be secured in
August/September, 2007 from the distributors M/s. Sharp Ocean
Investments Limited, Hong Kong at a total amount of US $
1 This issue has been dealt with in the order of this Court dated 9th October, 2017 in
W.P. No.65 of 2016
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6,315,000. Prior to this, on 29th December, 2016,
recommendation was made by the Senior Engineer (H) that
Agusta A-109 was suitable for operation for State Government VIP
operations. Thus, for quick delivery, the State negotiated with
M/s. Sharp Ocean Investments Limited. Final payment made is of
6,570,000 (Six million five hundred seventy thousand).
Contention that the price of the Helicopter was US $ 5,246,000 as
shown by the invoice of the Agusta Westland dated 30th October,
2007 and thus, the remaining amount was by way of commission
cannot be accepted in view of contents of the Agreement dated
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th October, 2007 and the correspondence. The said agreement
shows that Agusta had entered into agreement dated 24th May,
2006 for sale of Agusta Helicopter Model A-109 to Serum Institute
of India Limited. The sale was assigned by the said Serum to
Sharp and Sharp had made certain advance payments to Agusta.
Sharp had claimed its holding charges. Agusta itself made it clear
that the price was US $ 6 Million if delivery time was more. For
earlier delivery, pre-sold Helicopter could be purchased from its
distributor at a higher price. Thus, it cannot be said that there
was an excess payment for extraneous reason. Comparison with
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the price at which Jharkhand proposed to purchase helicopter has
no relevance as that was a deal in the year 2005 at which price
the helicopter was not available at the relevant time as noted
earlier. Price in Jharkhand deal was US $ 5.591 million and
the said transaction is dated 5th August, 2006. Obviously, it is
difficult to accept the contention that real value in the present
transaction was US $ 5.246 million on 26th October, 2017 when
the company itself vide letter dated 13th March, 2007 showed
inability for early disposal and stated that the price was US $ 6.0
million if delivery period was more than two years.
15. It cannot be disputed that the State Government was
entitled to make a choice to purchase the Helicopter in question.
There is nothing on record to show that the Helicopter could have
been procured for lesser price. No person claiming to give a
better deal has come forward. Thus, in absence of clear evidence
that loss was caused to public exchequer by way of commission
payment to Sharp Ocean Investments Limited which was only a
route to send the payment to the son of the Chief Minister,
interference by this Court is not called for. There is a tripartite
15
agreement dated 26th October, 2007, between Sharp Ocean
Investments Limited, the State of Chhatisgarh and Agusta to the
effect that Sharp Ocean Investments Limited was entitled to
retain payment made by it to Agusta to the extent of US $
100,000 (As per Article 4.1.A of Agreement dated 24th May, 2006
read with Agreement dated 13th November, 2006 in favour of
Sharp Ocean Investments Limited) and US $ 1,473, 800 under
Article 4.1.B of the Contract. The CAG report does not attribute
any extraneous consideration in the deal.
16. There is no material to prima facie hold that beneficiary of
transaction was Abhishak Singh. We do not consider it necessary
to go into the allegation of mere procedural irregularities. We
broadly find that no case is made out for interference by this
Court for issuing a direction as sought in absence of allegation of
extraneous consideration being substantiated.
17. Having considered the merits, we need not go into the
objection raised on behalf of the respondents that the petition
was for political gains and should not be looked into in view of
16
S.P. Gupta versus Union of India 2
, Janata Dal versus
H.S. Chowdhary3
, Rajiv Ranjan Singh ‘Lalan’ (VIII) versus
Union of India4
, Ashok Kumar Pandey versus State of West
Bengal5
, Kunga Nima Lepcha versus State of Sikkim6
,
Kishore Samrite versus State of U.P.7
, Alagaapuram R.
Mohanraj versus T.N. Legislative Assembly8 and Santosh
Singh versus Union of India9
. There is no doubt about the
legal position enunciated in the said decisions cautioning the
Court against interference with decisions of the Executive without
there being clear issue of genuine public interest. However, they
do not create a jurisdictional bar, if conscience of the Court is
pricked in a given case. A petition under Article 32, without clear
element of public interest, cannot be entertained at the instance
of a political rival merely on account of an alleged procedural
irregularity in the decision making which can be challenged at
appropriate forum by the aggrieved party.
2 1981 (Supp) SCC 87
3 (1992) 4 SCC 305
4 (2006) 6 SCC 613
5 (2004) 3 SCC 349
6 (2010) 4 SCC 513
7 (2013) 2 SCC 398
8 (2016) 6 SCC 82
9 (2016) 8 SCC 253
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Accordingly, we do not find any ground to grant prayer as
sought in the petitions which hereby stand dismissed. No costs.
....................................................J.
[ADARSH KUMAR GOEL]
....................................................J.
[UDAY UMESH LALIT]
NEW DELHI;
FEBRUARY 13, 2017.
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