THE HIGH COURT OF ORISSA : CUTTACK
W.P.(C) Nos.2065 of 2010, 7303 of 2011, 27845 of 2011, 11738 of
2009, 15988 of 2009 & W.A. No.211 of 2012
_______________________________________________________________________
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
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(In W.P.(C) No.2065 of 2010) Narayan Sahoo ...... Petitioner
-Versus-
State of Odisha and Ors. ...... Opp. Parties For Petitioners : M/s.Sachidananda Sahoo & P.R.Bhuyan For Opp. Parties : Mr. Ashok Mohanty, Advocate General (For O.P.Nos.1 to 12) : Mr.Pinaki Mishra, Sr. Advocate M/s. S.K.Padhi (Sr. Advocate), M.Padhi, A.Das, B.Panigrahi & S.B.Dash, (For opposite party Nos.13 & 14) : Mr.J.Pattnaik, Sr. Advocate M/s.B.Mohanty, T.Pattnaik, S.Pattnaik, A.Pattnaik, B.S.Rayaguru (For opposite party No.16) : None (For opposite party Nos.15 & 17) (In W.P.(C) No.7303 of 2011) Narendra Ku. Mohapatra & Ors. ...... Petitioners
-Versus-
Chief Secretary & Chief
Development Commissioner
and Ors. ...... Opp. Parties
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For Petitioners : Mr.T.Barik
For Opp. Parties : Mr. Ashok Mohanty, Advocate General
(For O.P.Nos.1 to 8)
Mr.S.D.Das (A.S.G.)
(For O.P. No.9)
Mr.Pinaki Mishra, Sr. Advocate
M/s. S.K.Padhi (Sr. Advocate),
Mr.M.Padhi, A.Das, B.Panigrahi,
S.B.Dash, B.K.Das, N.Tripathy,
J.R.Dash
(For O.P. No.10)
(In W.P.(C) No.27845 of 2011)
Chaturbhuja Mohapatra & Ors. ...... Petitioners
-Versus-
State of Orissa and Ors. ...... Opp. Parties
For Petitioners : M/s.(Dr.)A.K.Mohapatra, A..K.Mohapatra,
N.C.Rout, S.K.Padhi, S.Mishra, S.Swain
& T.Das
For Opp. Parties : Mr. Ashok Mohanty, Advocate General
(For O.P.No.1)
Mr.Pinaki Mishra, Sr. Advocate
M/s.B.K.Das, N.Tripathy & J.R.Das
(For O.P. No.2)
Mr.J.Pattnaik, Sr. Advocate
M/s.B.Mohanty, T.K.Pattnaik, A.Pattnaik, R.P.Ray & B.S.Rayaguru (For O.P. No.3) Mr. S.K.Padhi, Sr. Advocate, M/s.M.Padhi, A.Das, B.Panigrahi & S.S.Mohanty.
(For O.P. No.4)
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(In W.P.(C) No.11738 of 2009)
Charidesh Krusak Surakhya
Sangha & Ors. ...... Petitioners
-Versus-
State of Odisha and Ors. ...... Opp. Parties
For Petitioners : M/s.Sachidananda Sahoo & P.R.Bhuyan
For Opp. Parties : Mr. Ashok Mohanty, Advocate General
(For O.P.Nos.1 to 5)
Mr.J.Pattnaik, Sr. Advocate
M/s.B.Mohanty, T.Pattnaik, S.Pattnaik, A.Pattnaik, B.S.Rayaguru (For O.P. No.6) Mr.Pinaki Mishra, Sr. Advocate M/s. S.K.Padhi (Sr. Advocate), M.Padhi, A.Das, B.Panigrahi & S.B.Dash, (For O.P. No.7) (In W.P.(C) No.15988 of 2009) Panu Sahoo & Ors. ...... Petitioners
-Versus-
State of Orissa and Ors. ...... Opp. Parties For Petitioners : M/s.Sachidananda Sahoo & P.R.Bhuyan For Opp. Parties : Mr. Ashok Mohanty, Advocate General (For O.P.Nos.1 to 5) Mr.J.Pattnaik, Sr. Advocate M/s.B.Mohanty, J.K.Pattnaik, A.Pattnaik & B.S.Rayaguru (For O.P. No.6) Mr.Pinaki Mishra, Sr. Advocate Mr. S.K.Padhi, Sr. Advocate, M/s.M.Padhi, A.Das, B.Panigrahi, (For O.P. No.7) 4 (In W.A. No.211 of 2012) Charidesh Krusak Surakhya Sangha & Ors. ...... Appellant
-Versus-
M/s. K.V.K. Nilachal Power Pvt.Ltd.
& Others ...... Respondents
For Appellant : M/s.Sachidananda Sahoo & P.R.Bhuyan.
For Respondents : Mr.Pinaki Mishra, Sr. Advocate
M/s.Chandan Samantaray
(For Respondent No.1)
Mr.Pinaki Mishra, Sr. Advocate
M/s.B.K.Das, N.Tripathy & J.R.Das
(For O.P. No.2)
Mr. Ashok Mohanty, Advocate General
(For Respondent Nos.2 to 5)
Mr.J.Pattnaik, Sr. Advocate
M/s.B.Mohanty, T.K.Pattnaik, A.Pattnaik, R.P.Ray & B.S.Rayaguru (For Respondent Nos.6)
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P R E S E N T:
THE HON'BLE MR. JUSTICE INDRAJIT MAHANTY.
& THE HON'BLE MR. JUSTICE BISWANATH MAHAPATRA. Date of hearing: 02.04.2014 Date of Judgment: 16.05.2014 I. Mahanty, J. The present batch of writ applications has come to be filed by the petitioner Charidesa Krusak Surakhya Sangha and several land losers seeking to challenge the validity of the acquisition of land made by the Industrial Development Corporation of Odisha (hereinafter referred to as the 'IDCO') for the purpose of setting up a thermal power plant by M/s. KVK Nilachal Pvt. Ltd. (hereinafter referred to as the 'KVK').
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2. At the commencement of hearing, we requested the learned counsel for the respective parties in this batch of cases to make out categories on the issues raised and to bunch the various cases in each such category. Accordingly, on the consent of the learned counsel representing the various parties, four categories were made. This judgment relates to issues under Categories-II & III as noted hereinbelow:
Category-II Challenge to the alienation of Government land under & III the OGLS Act, illegal sale of Government land, illegal sale of SC & ST, Smashan, common land.
Challenge to the validity of Notification U/s.73(c) of the Odisha Land Reforms Act, 1960 as well as challenge to the private purchases made by KVK for its thermal power plant.
08. W.P.(C) No.2065 of 2010
09. W.P.(C) No.7303 of 2011
10. W.P.(C) No.11738 of 2009
11. W.A. No.211 of 2012
12. W.A. No.15988 of 2009
13. W.P.(C) No.27845 of 2011
3. For the convenience of adjudication, we have proceeded to deal with the aforesaid cases category-wise and, accordingly, the present judgment is confined to the issues raised in Categories-II & III i.e. challenge to the alienation of Government land under the OGLS Act, illegal sale of Government land, illegal sale of SC & ST, Smashan, common land and the validity of Notification U/s.73(C) of the Odisha Land Reforms Act, 1960 as well as challenge to the private purchases made by KVK for its thermal power plant respectively. 6
4. Since in the connected judgment delivered today in W.P.(C) Nos.6715 of 2011 along with batch of writ applications, the factual background of challenge has been noted in detail therein, for the sake of brevity, the same is not being repeated herein.
5. We will now record the submissions of the respective parties in relation to the following challenges.
Category-II Challenge to the alienation of Government land under the OGLS Act, illegal sale of Government land, illegal sale of SC & ST, Smashan, common land.
Category-III Validity of Notification U/s.73(c) of the Odisha Land Reforms Act, 1960 as well as challenge to the private purchases made by KVK for its thermal power plant respectively.
6. Mr. Jayant Das, learned Senior Advocate for the petitioners submits that the entire land covered in present case is "agricultural" land and "governed by the Orissa Land Reforms Act, 1960." It is alleged that KVK illegally purchased land in this area in violation of mandatory provisions of the Odisha Land Reforms Act, 1960. It is also alleged that KVK made certain illegal purchases by manipulating documents showing government land and communal land as private land.
Apart from the above illegalities, KVK could not have put to use the entire area which is covered under the O.L.R. Act with agricultural land and the ownership/ holding in the hands of KVK 7 could not also exceed the ceiling since their holding exceeds the maximum quantity of land permissible under the O.L.R. Act.
7. Reliance was placed on Section 73(c) of the O.L.R. Act and challenge is also made to a notification issued by the State of Odisha dated 8th December, 2008 purportedly under Section 73(c) of the O.L.R. Act declaring that the land in the four villages from where land was acquired for KVK "is reserved for industrial development subject to the provisions of the Odisha Resettlement and Rehabilitation Policy 2006." It is alleged that the issue of the aforesaid notification after signing the MOU and after issue of notification of Section 4(1) of the Land Acquisition Act and after privately purchasing land beyond the ceiling limit is in violation of the embargo imposed under the O.L.R. Act. It is further submitted that the impugned notification has been issued for the purpose of a post facto approval of an illegal act on the part of KVK and hence, the notification issued was baseless and without any foundation and contrary to law.
To buttress the aforesaid contention, it is also contended that Section 73(c) is an enabling provision, without any guideline and the said provision is unguided, unregulated, uncanalised and unbridled and in order to be saved from it being declared "unconstitutional", has to be read down, to be in conformity with Article 14 of the Constitution of India. Therefore, the State would have to first take a decision with reference to the nature and character of 8 land in an area to evaluate as to whether such a notification is warranted in "public interest" and make an assessment in terms of any objective criteria. The State Government is also bound to afford an opportunity of hearing to the persons who are likely to be affected and reliance was placed on the judgment of the Hon'ble Supreme Court in the case of Janamohan Das & Others V. State of Orissa & Others, AIR 1993 ORI 157 & R.S. Sherawat v. State of Haryana & Others, (2012) 1 SCC 792. Consequently, the exercise of power in the case at hand is patently illegal and, therefore, notification under Section 73(c) of the O.L.R. Act is likely to be struck down.
8. It is further stated that the land in question is "agricultural land" and the land available for agriculture is, as per public reports being reduced from time to time and consequently, it is a priority to the State to ensure the preservation of agricultural land in the interest of public.
9. Further contention has been advanced that part of the acquired area includes "communal land" which cannot be alienated and reliance is placed on the judgment of the Hon'ble Supreme Court in the case of Jaipal Singh v. State of Punjab, (2011) 11 SCC 396 and Consumer Action v. State of T.N., (2000) 7 SCC 425.
Submissions of learned Advocate General
10. It is submitted by Mr. Ashok Mohanty, the learned Advocate General that the function of a State in issuing the Notification under 9 Section 73(c) of the OLR Act, 1960 is essentially a "legislative function" and not "executive function". It is asserted that the OLR Act does not contemplate grant of any opportunity of hearing to anybody either before or after the publication of a notice under Section 73(c) and consequently the principle of natural justice cannot be read into the provisions of OLR Act, especially, when the Act itself does not provide for the same. Reliance was placed on a judgment of the Hon'ble apex Court in the case of K.T. Plantations, (2011) 9 SCC 1.
It is further submitted by the learned Advocate General that the purpose of Section 73(c) of the OLR Act is that once the agricultural reform is complete, industrial development will take place and unless there is an exemption granted, the applicability of the provisions of the OLR Act, industrial development cannot take place. Therefore, Section 73(c) of the OLR Act has to be read conjointly with Section 38(b) of the OLR Act. While a Notification under Section 73(c) of the OLR Act is always in respect of an area and in the case at hand, only a small part of the area covered under Section 73(c) Notification, has been acquired for the purposes of IDCO/KVK and the rest part now having been declared as an "industrial area", consequentially is available to the State for allocation and after acquisition, if any. Reliance was placed in this respect on the judgment of the Hon'ble Supreme Court in the Case of Murudeshwara Ceramics, (2002) 1 SCC 116 and since the land covered under the Notification under Section 10 73(c) is far larger than the area leased by IDCO to KVK this by itself establishes that there has been no colorable exercise of power by the State.
Submissions of KVK
11 . Concurrent purchase of land by the KVK
Mr. Pinaki Mishra, learned Senior Advocate appearing for the KVK submitted that simultaneously with land acquisition proceedings, the KVK has purchased land privately through negotiations. In this regard, it is submitted that purchase of land by the project proponent after issue of notification u/s.4(1), is permissible under R & R Policy, 2006. Para-6 of the said Policy is as follows:
"The Project Proponent may opt for direct purchase of land on the basis of negotiated price after issue of notification requiring acquisition of land under relevant Act (s). If acquisition of land through direct purchase fails, other provisions of the relevant Act may be invoked."
12. Acquired lands are not fertile One of the other objections raised is that the lands are fertile. This is completely belied by the Report prepared by the LAO, which clearly shows that the classification of lands under acquisition is mainly Sarad I, II and III (which means single paddy crop). Hence, the lands under acquisition are neither double crop nor irrigated and are only capable of a single crop.
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13. II. Challenge to validity of notification dated 08.12.2008 issued under Section 73(c) of the Orissa Land Reforms Act ("OLR Act")/ Challenge to land privately purchased by the Company prior to issuance of Section 73(c) notification.
By a notification dated 08.12.2008 issued u/s.73(c) of the OLR Act, the State Govt. declared that the land in four villages namely Khandauli, Kandarei, Dalua and Rahangol in Athagarh Tehsil, District Cuttack is reserved for "industrial development" with the condition that Orissa R & R Policy shall be applicable. The effect of the notification is that the land in these four villages has been exempted from applicability of the OLR Act.
14. (A). Validity of the Notification u/s.73(c) of the OLR Act Requirement of Hearing before issuing the Notification.
The KVK submits that in law there would be no requirement of giving any hearing for the purpose of issuing a notification us.73(c) of the Act for the following reasons.
i. The notification under Section 73(c) of the OLR Act has the effect of determining the areas to which the statute shall not apply. In other words, determination of the territory for operation of the statute is nothing but a legislative action. This action is not directed against any one person or specified persons. The statute merely prescribes the reasons for which the territorial application of the 12 statute may be reduced and does not mandate any hearing.
ii. It is settled law that Principles of Natural Justice are inapplicable where the function is legislative in character and if the statute does not mandate any prior hearing.
iii. The notification u/s.73(c) of the OLR Act does not adversely affect the legal rights of anyone except entitling them to undertake voluntary sale transactions at a price mutually agreed to between the Vendor and Vendee. Unlike land acquisition, there is absolutely no compulsion or obligation for the Vendor to part with his land. Section 73(c), does not mandate any hearing before issuing the notification, nor can any requirement be read into the provision. In the event, the people wish to part with their land, they will be entitled to the benefits under R and R Policy, as provided in the notification.
It is submitted that the OLR Act does not contemplate any public hearing. The exercise of power under Section 73(c) by the Govt. is a legislative act and not an administrative/quasi-judicial order. Specific reliance is placed on the judgment of the Hon'ble Supreme Court reported in (1982) SCC 295- Tulsipur Sugar Company Ltd. vs. The Notified area Committee, Tulsipur.
15. It was further submitted that hearing was given to the petitioners and other concerned after the issuance of notification, in terms of the direction given by the Hon'ble Supreme Court. 13
The writ petition by the land losers was erroneously dismissed by this Court vide order dated 23.03.2010, on the ground that proceedings under land acquisition having already started, the petitioners would have an opportunity to file their objections to the Section 73(c) notification in the said proceedings. Consequently, the petitioners filed an SLP against the said order [SLP(C) No.16378/2009; Civil Appeal No.6457/2011];
In the said petition, the Supreme Court passed an Order dated 05.10.2010 directing the State Government to decide the representation of the petitioners by giving a reasoned order within six weeks from the date of communication of the order.
In compliance with the directions of the Supreme Court, the Revenue Divisional Commissioner ("RDC") duly conducted an enquiry in the presence of the petitioners and submitted a factual enquiry report on 27.11.2010.
The Enquiry Report was considered by the Government and the representation of the petitioners was disposed of vide order dated 03.12.2010 in terms thereof. The relevant finding of the Enquiry Report are as follows:-
(a) As far as the land purchased over and above the ceiling limit, it was observed that the Company had challenged the proceedings initiated by the Tahsildar under the OLR Act [Ceiling Case] by filing a Writ Petition - WP(C)No.14
19908/2009 and therefore further progress would depend on the outcome of the writ petition. This writ petition has already been allowed vide judgment dated 22.06.2011.
(b) As regards the land purchased from SC/ST in violation of Section 22 of the OLR Act, it was found that the Company had not executed even a single sale deed for purchase of the said lands and the Company had only entered into agreements for sale with three farmers for 4.92 Acres. This is corroborated by the letter dated 24.01.2009 addressed by the Sub-Registrar to the Sub-Collector stating that agreements to sale were registered and not sale deed. Therefore, there was no express violation of Section 22 of the OLR Act.
(c) The Enquiry Report in Para B, C and D deals exhaustively with the issues relating to Forest and Environment, Cropping Pattern and Socio Economic Issues. The Report contains the following important findings:
(i) There is no elephant corridor inside the project area and the nearest elephant corridor is about 5.5 km from project area;
(ii) Project does not form part of the reserve forest;
(iii) Aspects relating to pollution and possible impact on pollution are taken care of by the permission granted by MoEF;15
(iv) The perennial water source (Barajore Nala drainage system) passing through the proposed plant site shall be addressed by diverting the same outside the project area and costs in for such diversion, construction, maintenance and monitoring the system shall be borne by the company including land that may be required to be acquired for the purpose;
(v) Villagers have informed that people are not taking interest in the agriculture as two LI (Lift Irrigation) points are lying defunct, and the area otherwise non-irrigated will not be affected of the benefit of the drain due to it being relocated, and further the area is a rain-fed area and there is no regular irrigation source;
(vi) It may be noted that in the representation dated 05.12.2008 petitioners themselves had noted that notification must not be issued without forming an opinion that lands which are going to be notified are rain-fed barren lands and are not good for agriculture which opinion has clearly been formed;
(vii) Charidesha Krushak Sangha (petitioner has very few supporters and almost all villagers during the inquiry supported the project;
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(viii) Allegation that the land covered under the notification covers cremation field, Gochar land was not taken in the representation dated 05.12.2008. Common land (which belongs to no specific individual as such or may at best vested in State) cannot be subject matter of voluntary sale transaction with villagers/farmers which Section 73(c) notification facilitates.
16. The said enquiry report was also filed in the Hon'ble Supreme Court in Civil Appeal No.6357/2011.
Therefore, all the issues raised in the representation as well as in the present writ petition have been comprehensively dealt with in the Enquiry Report. It is pertinent to mention that the Order of the Govt. or the Enquiry Report has not been challenged till date and has attained finality. Therefore, in any event of the matter, the grounds raised by the petitioners in their representation/objection to the issuance of Section 73(c) notification have been considered and decided and there is no challenge to the said decision.
17. Additionally, in respect of the 'Barajore Nala', the KVK submits as follows:-
(i) The RDC, Central Division, Cuttack during his field visit to the site has viewed that the said drain passes through the plant site and it runs through flat terrain without embankments on any side. The said 'Nala' becomes dry 17 during summer and it is not perennial water source. The diversion of the said drain will not affect the irrigation benefits of farmers during rainy season if the same is reallocated properly.
(ii) The Company has submitted proposal to the Secretary to Government, Water Resources Department for engagement of consultant to study flow of water for diversion of the drain. The Chief Engineer, Drain Division has approved the proposal and requested the Principal Secretary to Government, Water Resources Department for approval plan for change of alignment of 'Barajore Nala'.
(iii) The undertaking has already been given by the KVK to bear the cost of construction of drain as per the estimate given by the W.R. Department. The said proposal is now pending with W.R. Department for approval.
(iv) In this regard, the learned Advocate General has placed on record/filed a letter dated 13.06.2011 with a memo on 09.04.2013, written by the Chief Engineer, Drainage to the Executive Engineer, Drainage Division, Cuttack giving the status of the diversion of the said 'Nala'. It is submitted that the said proposal is still pending and unless it is approved any challenge to the same will be premature.
18. The contention of the petitioners that the impugned notification is issued in private interest i.e. to allegedly favour the KVK is unsubstantiated and meritless for the following reasons:- 18
(i) Section 73(c) is an enabling provision with the objective of promoting industrialization. In the present case, the project is being constructed pursuant to a MoU with the State Govt. and it is in the nature of public-private partnership.
(ii) The State Govt., under the MoU, has undertaken an obligation to facilitate procurement of land for the project. Generation of power is in public interest. 25% of the power to be generated from the project will be sold to the State. Vast employment and other opportunities will be provided to the local people by the project.
(iii) Although the land required for the project is 834 acres, the notification is for larger area of four villages comprising approx. 5,000 acres, which is reserved for proposed industrialization.
(iv) Further the notification expressly provides that Orissa R & R Policy 2006 shall be applicable. This clearly shows that the State was cognizant of the incidental effects of reserving the area for industrialization and therefore, it took measures the extent possible to alleviate the concerns of local inhabitants. Additionally the MoU dated 26.09.2006 in Clause (i) notes that 19 power will be made available to state at cheaper rate i.e only at 'variable cost' (which means non-recovery of 'fixed cost'). A preferential right is given under Clause
(ii) to State to purchase 25% power at vastly concessional rates. Then there is also a provision that in the matters of employment preference will be given to people of Odisha and local people, and if necessary, the KVK will make efforts for improving the skill levels of such persons. The KVK is to contribute 6 paise for every unit sold outside the state towards environmental fund.
In view of the above, it is submitted that there is no merit in the challenge to validity of the notification dated 08.12.2008 issued by the State Government under Section 73(c) of the OLR Act, 1960.
19. Purchase of land by the KVK before Section 73(c) notification.
(i) The KVK had purchased a total of 250.53 acres of land between 28.03.2008 to 08.12.2008 (prior to the issuance of Section 73(c) notification.
(ii) The KVK challenged the notice dated 16.12.2009 issued by the Tahasildar for initiating a ceiling case under the OLR Act, by filing a writ petition namely WP(C) No.19908/2009. This Court vide order dated 04.02.2010 stayed the operation of the notice issued by the Tahasildar. The Collector, Sub-Collector and 20 Tahasildar filed counter affidavit opposing the writ petition. The said petition was allowed by the Single Judge vide judgment dated 22.06.2011 and the notice issued by Tahasildar was quashed.
(iii) Neither the Tahasildar nor the Sub-Collector has challenged the said judgment of the learned Single Judge.
(iv) However, an intervention application being Misc. Case No.10048/2010 was filed by some petitioners in the above writ petition. When the writ petition was heard on 22.06.2011, the Interveners did not remain present. The Interveners have however it thought fit to challenge the judgment dated 22.06.2011 of the learned Single Judge on merits by filing a writ appeal bearing W.A. No.211/2011. It is stated that the Single Judge did not allow the intervention application and also did not allow the Interveners to participate in the hearing. However, there is no such finding in the judgment that the Intervention is disallowed. In the said Appeal, there is not even any pleading to demonstrate as to how the petitioner is a 'person aggrieved'. It is submitted that every action of state taken and rejected by a court does not confer and standing on a third party to raise grievance in respect of such order and certainly proceedings in the nature of a PIL cannot lie against the order of a court. The order does not contain even a whisper that any intervention application was moved by CKS Sangha in the writ petition.
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(v) Secondly, the petitioners cannot seek to intervene purportedly in public interest, in a writ petition filed by the Company to enforce its rights. If at all, the petitioners were desirous of espousing any purported public interest, the only remedy available was to a file a substantive writ petition, which was not filed. Reliance is placed on the judgment of the Hon'ble Supreme Court in Murudeswara Ceramics Ltd. and Anr. Vs. State of Karnataka and others, reported at (2002) 1 SCC 116.
20. It is submitted that in any event of the matter, the land purchased by the KVK would not be affected by any decision on the validity of the notification dated 08.12.2008.
It is most further submitted that it would be clear from the direction of the Supreme Court that, in so far as the land owned and possessed by the Company is concerned, as on the date of the Supreme Court Order, the same is outside the purview of challenge to notification dated 08.12.2008. It is also pertinent to note that in the writ petition challenging the validity of the notification dated 08.12.2008, the land purchased by the Company prior to Notification dated 08.12.2008 was also challenged.
As on the date of the Supreme Court's Order, the KVK owned and possessed the following land:-
Land purchased privately-250.503 Acres 22 The above land is therefore outside the purview of challenge in W.P.(C) No.11738/2009 by virtue of the Order dated 05.08.2011 passed by the Hon'ble Supreme Court.
Insofar as 141.17 acres of Government land, which is made the subject matter of the petition is concerned, the KVK has already taken a stand in its letter dated 02.12.2009 that the KVK was misled and duped to purchase the said land by sale deeds executed by the encroachers on the legal advice by the then legal counsel of the KVK that the under the R & R Policy, the KVK is required to purchase rights from such persons. Therefore, the KVK is not claiming any rights on the basis of the said sale deeds. The KVK spent close to Rs.3.5 crores on the said land, which is being written off today. Further the KVK has never been in possession of the land. Notwithstanding, the fraud played upon the KVK by the encroachers, the KVK has extended the R & R benefits to the said encroachers.
21. In the light of the facts as noted hereinabove, the following issues arise for consideration in the present batch of cases.
(i) Whether there has been illegal sale of land belonging to vendors of the Scheduled Caste and Scheduled Tribe community and/or sale of communal land which is impermissible in law?
(ii) Challenge to private purchases of land made by KVK whether valid or not?
(iii) Challenge to notification under Section 73(c) of the Orissa Land Reforms Act, 1960.
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22. ISSUE No.(i) The essential argument of the petitioners in this batch of cases is that the entire land under acquisition being agricultural in nature, could not have been sold or purchased by KVK by fraudulent transactions and/or by illegal sales from Scheduled Caste and Scheduled Tribe persons in violation of the Orissa Land Reforms Act, 1960. Insofar as the alleged land purchased from the Scheduled Caste and Scheduled Tribe persons are concerned in purported violation of Section 22 of the Orissa Land Reforms Act, 1960, it has been asserted by KVK that no registered sale deed has ever been executed in favour of KVK for purchase of the said land. In fact, it is submitted that the KVK had only entered into agreements for sale with three individual farmers for a total of 4.92 Acres of land. In fact, it is submitted on behalf of KVK that there has been in fact no purchase of land from any Scheduled Caste and Scheduled Tribe person.
Insofar as purchase of 141.17 acres of Government land is concerned, it has been asserted on behalf of KVK in its counter affidavit that it had been mislead and duped to purchase the said land without being aware that the same was Government land and sale deed had been executed by certain encroachers and such act on the part of the KVK had been based upon the legal advice of the then legal counsel of the company. It is also further asserted that 24 advice had been given to the KVK that rights of the encroacher were also required to be purchased under the R & R Policy of the State Government. But, both by way of an affidavit as well as oral submission learned counsel appearing for KVK has made the following categoric statement i.e. "KVK is not claiming any rights on the basis of the said sale deeds", even though KVK had spent close to Rs.3.5 crores for the said land and had never taken possession of the said land. It is further stated that in spite of the fact that the encroachers had committed fraud on the company-KVK, yet KVK had extended R & R Policy benefit to all such encroachers.
In view of the aforesaid stand taken by the opposite party-company (KVK), we find no merit in the contentions raised by the petitioners both insofar as the alleged illegal sale or purchase of land belonging to Scheduled Caste and Scheduled Tribe persons which is found to be factually incorrect. Insofar as the question of fraudulent purchase of Government land is concerned, the KVK has already lost a huge amount of money having been misled by their legal counsels by effecting sale deeds by encroachers of Government land. In any event, all such encroachers have also been given the benefit of R & R Policy of the Government of Orissa and KVK have declared that they have no right over the said land. Consequently, the first issue is answered in favour of the opposite party and against the petitioners.
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23. ISSUE No.(ii) In this respect, the petitioners have sought to allege that the project proponent company-KVK ought not to or could not have purchased the land covered under Section-4(1) notification under the Land Acquisition Act, 1894. In response, the opposite party-company has placed reliance upon para-6 of the R & R Policy of the State of Orissa, 2006. In terms of which, each of the project proponent was given an option for direct purchase of land on the basis of negotiated price after issue of notification requiring acquisition of land. In the case at hand after the issue of notification under Section 4(1) of the Land Acquisition Act, the opposite party- company was under an obligation to go for negotiation of purchase of the said land, since, it is the considered view of the State that the private parties have a right to obtain the best price from the project proponent and consequently, such land once privately purchased would not only be to the benefit the land loser but also oust the land from the purview of the acquisition proceeding. Therefore, in view of the same, we find no justifiable reason as to why the purchase of land from individuals by private negotiation is in any manner violative of any law and on the contrary, is in consonance with the R & R Policy of 2006 and in particular para-6 thereof. 26
24. ISSUE No.(iii):
The petitioners' contention insofar as the notification under Section 73(c) is concerned, as well as the response thereto by the learned Advocate General and the learned counsel for KVK has been noted in detail hereinabove. At the out set, it has to be determined, as to whether the State while issuing a notification under Section 73(c) of the Orissa Land Reforms Act, 1960 is acting either on the "executive side" or on the "legislative side". This issue is no longer res integra and has been settled by the Hon'ble Supreme Court in the case of K.T. Plantation Private Limited and Another vs. State of Karnataka, (2011) 9 SCC 1.
For convenience of reference, Sections 37(B) and 73(c) of the Orissa Land Reforms Act, 1960 are quoted herein below:
"37-B. Persons not entitled to hold land in excess of ceiling area - On and from the commencement of the Orissa Land Reforms (Amendment) Act, 1973 (President's Act 17 of 1973), no person shall, either as landholder or raiyat or as both, be entitled to hold any land in excess of the ceiling area."
"73. Act no to apply to certain lands -
Nothing contained in this Act, shall apply -
(c) To any area which the Government may, from time to time by notification in the Official Gazette specify as being reserved for urban, non- agricultural or industrial development or for any other specific purposes."
25. Section 37-A of the Orissa Land Reforms Act stipulates the ceiling area in respect of a person shall be ten standard acres while Section 37-B mandates that "no person shall be entitled to hold land 27 in excess of the ceiling area". At the same time, Section 73(c) vests the power and authority in the State to declare that the Land Reforms Act, 1960 would not apply to certain lands and sub-Section(c) thereof specifically vests the State with authority to declare any area which the Government may from time to time by notification in the official gazette specify as being reserved for urban, non-agricultural or industrial development or for any other specific purpose.
In the present case, there is no dispute that the State has issued a notification under Section 73(c). Now the issue remains as to whether the power vested under Section 73 is legislative or executive in character. In this respect, the learned Advocate General placed reliance on a judgment of the Hon'ble Supreme Court in the case of K.T.Plantation Private Limited and Another vs. State of Karnataka, (2011) 9 SCC 1. On the other hand, the learned Senior Advocate appearing for the petitioners have challenged Section 73(c), inter alia, on the ground that it vests excessive delegation of legislative power on the State Government. So, at the threshold there cannot be any doubt that the nature of power vested in the State under Section 73(c) is essentially "legislative in character".
Therefore, the next question that arises for consideration is whether in absence of any Rules or guidelines, the delegation of legislative power on the State Government is excessive or not. The Hon'ble Supreme Court in the case of K.T.Plantation 28 (Supra) has dealt with the self same issue and placing reliance on an earlier judgment of the Hon'ble Supreme Court in the case of Maharashtra State Board of Secondary and Higher Secondary Education vs. Paritosh Bhupeshkumar Sheth, (1984) 4 SCC 27 came to hold that "the Court cannot substitute its own opinion for that of the legislature or its delegate as to what principle or policy would best serve the objects and purposes of the Act or sit in judgment over the wisdom and effectiveness or otherwise of the policy laid down by the regulation-making body and declare a regulation to be ultra vires merely on the ground that, in the opinion of the court, the impugned provisions will not help to serve the object and purpose of the Act."
26. Apart from the above, reliance was also placed on an earlier judgments of the Hon'ble Supreme Court in the case of Bhatnagars & Co. Ltd. V. Union of India and Mohnedalli v. Union of India, reported in AIR 1957 SC 478 and AIR 1964 SC 980 respectively. In the aforesaid judgments referred to in the case of K.T.Plantation (Supra), the Hon'ble Supreme Court concluded that "law is well settled that the court shall not invalidate a legislation on the ground of delegation of essential legislative functions or on the ground of conferring unguided, uncontrolled and vague power upon the delegate without taking into account the Preamble of the Act so also other provisions of the stature in the event they provide good means 29 of finding out the meaning of the offending statute. The question whether any particular legislation suffers from excessive delegation, has to be determined by the court having regard to the subject- matter, the scheme, the provisions of the statute including its Preamble and the facts and circumstances and the background on which the statute is enacted."
27. In the present case, the learned Advocate General while supporting the Governments notification under Section 73(c) of the Orissa Land Reforms Act submitted that, the nature of power being legislative in nature, principle of natural justice cannot be read into the same. He further submitted that Section 73(c) of the O.L.R. Act, 1960 has to be read conjointly with Section 38(b) of the said Act which is quoted hereunder:
"38. Exemption from ceiling - Save as otherwise provided in this Section, the provisions of this chapter shall not apply to -
(b) lands held by industrial or commercial undertaking or comprised in mills, factories or workshops, where such lands are necessary for the use, for any non-agricultural purpose, of such undertakings, mills, factories or worship.
It is further submitted by him that a notification under Section 73(c) of the O.L.R. Act is always in respect of an area and in the present case, while the total area covered by the impugned notification is more than five thousand acres, which is declared as 30 "industrial area", only a small part of the said areas i.e. Ac.834 has been acquired by IDCO for leasing of the same to KVK for setting up of its power plant. Therefore, he submitted that since the land covered under the notification under Section 73(a) is far larger than the area leased by IDCO to KVK, this fact by itself would establish that there has been no "colourable exercise of power" by the State. Reliance is placed by the learned Advocate General in the case of Murudeshwara Ceramics Ltd. and Another vs. State of Karnataka and others, (2002) 1 Supreme Court Cases 116. In the said judgment a similar notification under the Karnataka Land Reforms Act granting exemption for industrial purposes, education institution, place of worship and housing project had came to be challenged. Paragraph-6 thereof is extracted hereinbelow:
"6. Section 109 of the Act confers power on the State Government to grant exemption in regard to a land in any area from the provisions of Sections 63, 79-A, 79-B and 80 of the Act to be used for industrial purposes, educational institutions, places of worship, a housing project or horticulture including floriculture or an agro-based industry. Further, the Government has also the power even in the absence of such purposes to grant exemption in public interest. If the aspect that it is not with reference to any particular person or transaction such exemption is granted but it is with reference to a land such exemption is granted is borne in mind the interpretation and application of law becomes clear. It may be that such exemption could be granted before the acquisition of land or thereafter when it is actually sought to be put to those particular uses, which are enumerated under Section 109 of the Act. Therefore, once we come to the conclusion that the Government has powers to grant exemption from the 31 operation of the provisions of Sections 63, 79-a, 79-B and 80 of the Act and those provisions will be out of place insofar as the land in question is concerned, the examination by the High Court as to whether there has been contravention of the provisions thereof was totally uncalled for. The High Court need not have embarked on the investigation as to whether the sale is in contravention of the provisions of the Act and ought to have held that those provisions are not applicable in the case of the land in question in view of the exemption granted. Thus the finding recorded by the High Court in this regard is set aside.
28. As would appears from the aforesaid dicta, it would be clear that under the appropriate provision under the Land Reforms Act, it is possible that such exemption notification could be granted either before acquisition of land or thereafter when it is actually sought to be put to particular use.
In view of the aforesaid quotation it is clear that the High Court ought not to embark upon an investigation as to whether a transaction is in contravention of the provisions of the O.L.R. Act and in view of the exemption being granted by the State by issue of notification under Section 73(c) of the O.L.R. Act.
29. Mr.Pinaki Mishra, learned Senior Advocate appearing for the KVK also supported the stand taken by the learned Advocate General and placed reliance on a further judgment of the Hon'ble Supreme Court in the case of Tulsipur Sugar Company Ltd. v. The Notified Area Committee, Tulsipur, (1982) SCC 295 wherein a similar issue of Government declaring a particular area as town area was 32 questioned. It was held by the Hon'ble apex Court that declaring a particular are as town area was a legislative exercise and therefore rule of natural justice are not required to be observed. The situation is similar in the present case in as much as a notification declaring that the provisions of the OLR Act would not be applicable to certain land, would not require observance of principles of natural justice.
30. In the fact situation that arise for consideration herein, it is also important to take note herein that the writ petitions had been filed for certain purported land losers which had came to be dismissed by this Court vide its order dated 23.3.2010 on an erroneous ground that, since proceedings under the Land Acquisition Act has already commenced and that the petitioner would have opportunity to file their objections to the Notification under Section 73(c) of the OLR Act. The petitioner therein challenged the same before the Hon'ble Supreme Court in SLP No.13678 of 2009 (Civil Appeal 6457 of 2011). It is most relevant to take note of the fact that the Hon'ble Supreme Court by order dated 5.10.2010 directed the State Government to decide the representation of the petitioners by giving a reasoned order within six weeks from the date of communication of the said order.
It appears that in compliance of the direction of the Hon'ble Apex Court, the Revenue Divisional Commissioner (RDC) conducted an enquiry in presence of the writ petitioners and submitted a report on 27.11.2010. The said enquiry report of the RDC was duly 33 considered by the State Government and the representation of the petitioners was disposed of vide its order dated 3.12.2010 and the details of the enquiry report has been enumerated hereinabove. It appears that this enquiry report was also filed before the Hon'ble Supreme Court in the aforesaid Civil Appeal and is important to take note of the fact that neither the order of the State Government nor the enquiry report of the RDC had ever been challenged by any person. Whereas Section 73 (c) notification was issued for an area covering four villages comprising approximately 5000 acres which was reserved for industrialization, the land for the purpose of KVK Thermal Power Plant is only 834 acres.
31. In view of the aforesaid facts, we are of the considered view that while the issue of notification under Section 73(c) is essentially "legislative in nature" and since the Act itself does not provide any specific obligation for notice and/or hearing the same cannot be read into the statute and in the peculiar facts of the present case in any event, "post decisional hearing" was afforded to the petitioners by way of a direction issued by the Hon'ble Supreme Court to the State to carry out an enquiry. Such enquiry was duly carried out by issuing notices to the petitioners concerned and such enquiry report by the RDC has came to be accepted by the State Government and filed before the Hon'ble Apex Court. Therefore, in any event there having been given a post decisional hearing, the contentions of the petitioners 34 alleging that the statute does not base unguided authority on the deligatee, is wholly without substance and is hereby rejected.
32. Insofar as the supplementary issue of purchase of land by KVK before issue of Section 73(c) notification is concerned, it is admitted by the KVK that the project proponent company had purchased a total of 250.53 acre of land between the dates 28.3.2008 to 8.12.2008. Notices were issued against KVK by the District Administration and challenging the notice dated 16.12.2009 issued by the Tahasildar for initiating a ceiling case under the OLR Act, KVK had filed W.P.(C) No.19908 of 2009 and this Court vide its order dated 4.2.2010 while directing interim stay of the operation of the notice issued by the Tahasildar, came to be allowed by the learned Single Judge vide judgment dated 22.6.2011 and the notice issued by the Tahasildar came to be quashed by placing reliance upon the notice issued by the State under Section 73(c) of the OLR Act.
In the facts and circumstances of the present case, neither the State nor its functionaries have sought to challenge the said judgment of the learned Single Judge.
However, in Writ Appeal No.211 of 2011 has came to be filed by certain persons claiming to be land oustees. In this regard, it is important to take note that the appellant in the writ appeal had filed an intervention application, numbered as, Misc. Case No.10048 of 2010. When the writ petition came to be heard by the learned Single 35 Judge on 22.6.2011, none appeared for the intervenors to press their application nor did they remain present at the time of hearing. Thereafter, the learned Single Judge passed judgment on merits as stated hereinabove and a writ appeal came to be filed.
In this respect, we are of the considered view that, neither the intervention nor the writ appeal at the behest of "a person who cannot be termed as a person aggrieved" can be entertained.
33. In the aforesaid writ appeal, the appellants had filed intervention application but chose for reasons best known to them not to press the intervention application nor remain present at the time of hearing. Apart from that, it is the project proponent KVK who had been issued notices by the Tahasildar, which was the subject matter of challenge. Therefore, the issue/lis was between the State functionaries as well as the KVK and the appellant had no right whatsoever to seek to intervene in the matter, since every action of the State which is contested and set aside by a Court, cannot confer any right to a third party to file an appeal in the nature of PIL as the matter remains restricted to the parties to the lis alone. It would be useful herein to refer the judgment of the Hon'ble Supreme Court in the case of Murudeswara Ceramics Ltd. (supra) wherein in a similar fact situation, the Hon'ble Supreme Court held that "once the exemption was granted by the govt. to a particular land from applicability of provisions of Karnataka Land Reforms Act, 1961, the 36 High Court could not have embarked on the investigation as to whether the sale was in contravention of provisions of the Act even if the transaction had taken place prior to the exemption."
34. Another issue of relevance on the outcome of the present challenge is the effect of the order of the Hon'ble Supreme Court in Civil Appeal No. 6357 of 2011 dated 5.8.2011. In this case, the land purchased by the KVK was the subject matter of dispute and the Hon'ble Supreme Court disposed of the Civil Appeal in the following manner:
"......... In that view of the matter, we are of the considered opinion that so far the land owned and possessed by the company is concerned and in which the power plant is under construction, the same would not be subject matter of the writ petition as possession of the entire land is taken. This order is also passed in view of the statement made by the counsel appearing for the respondent No.7 that they do not intend to purchase any further land as of now.
Since, however, a challenge is made to the validity of the Notification dated 08.12.2008 issued by the Government of Orissa, which was the subject matter of the writ petition, the same will be decided in accordance with law. The decision of the High Court will be prospective in nature."
In view of the aforesaid direction of the Hon'ble Supreme Court, which is clear and categoric, this Court also cannot entertain any further challenge which pertains to the land already owned and possessed by the KVK in which the power plant is under construction and over which possession has been taken by the said date. The Hon'ble Supreme Court was clear that the question of validity of 37 challenge to the notification dated 8.12.2008 [73(c) of the OLR Act] issued by the Government of Odisha and the decision of the High Court thereon would only be prospective in nature. For this reason as well, in the present batch of writ petition, challenge to the purchase of land by KVK is barred by the principle of res judicata and this issue also to be answered in favour of the project proponent company i.e. KVK and the State Government and the stand of the petitioner has to be out rightly rejected.
35. Another supplementary issue raised in course of hearing related to the existence of a natural stream, known locally as 'Barajore Nala', within the area acquired by the State for IDCO. In this respect, we may note that the learned Advocate General has placed on record a letter dated 13.6.2011 along with the Memo on 9.4.2013, addressed by the Chief Engineer (Drainage) to the Executive Engineer (Drainage Division) stating that the status of the diversion of the said 'Nala', it is clear that consideration for diversion of the said 'Nala' has not been granted till date and the proposal remains pending consideration.
36. Mr. Pinaki Mishra, learned Senior Advocate for the KVK orally submitted that the KVK does not intent to make any blockage/ diversion of the 'Barajore Nala' without obtaining the necessary sanction of the appropriate authorities and consequently, while recording the aforesaid undertaking of the KVK, we are of the considered view that the issue regarding the alleged diversion of 38 'Barajore Nala' is premature, but the undertaking of the KVK that it will not make or in any manner impede the natural flow of water in the stream without necessary sanction/permission from the appropriate authority.
We further take note of the submissions of the learned Advocate General on behalf of the State, who submitted that the allegation regarding the natural stream flowing within the acquired area is concerned, it is submitted on behalf of the State that an affidavit filed by the Executive Engineer, Drainage Division, Cuttack dated 15.04.2013 where there exists a proposal for introducing a scheme for keeping the flow of the water of the natural stream intact by diverting the same for which approval has been sought for from the Government under the Bengal Drainage Act, 1880 and so far no approval has yet been granted and, therefore, KVK has not been permitted to change the course of the stream or in any way obstruct the natural flow of water and, therefore, in allegation to the contrary, is misplaced.
Hence, it would also be pertinent to note herein that a natural stream cannot be permitted to be diverted without protecting the rights of the people who benefits from such stream.
37. Reliance placed by the petitioners on the judgment of this court in the case of Janamohan Das & Others vs. State of Orissa & Others, AIR 1993 ORI 157 is concerned, the said case has been dealt 39 with the matter of a liquor tragedy in which the petitioner had sought for a direction from the State Government to appoint a commission of enquiry as well as to pay compensation to the families of the victims. In the said case, the Hon'ble High Court came to conclude that though the power to order an enquiry was discretionary, such discretion was not unfettered and consequently directed the State to appoint a Commission of Enquiry. In the case at hand, we find no applicability of the said principles since we find that the State has exercised its discretionary power and issued the impugned notice under Section 73(c) of the O.L.R. Act after applying its mind to the provisions of the said act as well its Industrial Policy Resolution of 2006. We are of the considered view that there is no justification in the present case made out for in any manner interfering with the decision of the Government to issue the necessary notification under the O.L.R. Act.
Insofar as the case of R.S.Sherawat v. State of Hariyana & Others, (2012) 1 SCC 792 is concerned, the Hon'ble Supreme Court has dealt with the scope and ambit of Section 5-A of the Land Acquisition Act, 1894 which enshrined that the said provision granted an opportunity of hearing to a land owner against the proposed acquisition and the right of such land owner to be given a fair opportunity of hearing to the objector and to objectively considered this plea against the acquisition of land. This judgment has no 40 relevance to the present facts and circumstances of the present case since the challenge in the present batch of writ petition relates not to a notification issued under L.A. Act 1894 (which has been dealt separately in a separate judgment) but to a challenge to the notification under Section 73(c) of the O.L.R. Act.
38. In the light of the findings arrived at on the judgments referred hereinabove, we are of the considered view that this batch of writ applications i.e. W.P.(C) Nos.2065 of 2010, 7303 of 2011, 11738 of 2009 and 27845 of 2011 as well as the Writ Appeals, i.e. W.A. Nos.211 of 2012 and 15988 of 2009 merits no further consideration and the same stand dismissed. All interim orders passed, shall stand vacated.
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I.Mahanty, J.
B.N.Mahapatra, J. I agree.
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B.N.Mahapatra,J
The Orissa High Court, Cuttack
16th May, 2014-KCP/RKS/PKP/RKM