Delhi High Court
Sachalabala Sethy And Ors. vs Chief Secretary And Chief ... on 16 May, 2014
Author: I.Mahanty
THE HIGH COURT OF ORISSA : CUTTACK
W.P.(C) Nos.6715 of 2011, 30882 of 2011, 22838 of 2011, 27628 of
2011, 17476 of 2009, 9326 of 2009, & 15042 of 2009
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
--------------
(In W.P.(C) No.6715 of 2011)
Sachalabala Sethy and Ors. ...... Petitioners
-Versus-
Chief Secretary and Chief
Development Commission,
Orissa and others ...... Opp. Parties
For Petitioners : Mr.Trilochan Barik
For Opp. Parties : Mr. Ashok Mohanty, Advocate General
(For O.P.Nos.1 to 5)
Mr. S.K.Padhi, Sr. Advocate
M/s.M.Padhi, A.Dash, B.Panigrahi,
S.B.Dash, S.S.Mohanty & H.K.Panigrahi
(For O.P. No.6)
(In W.P.(C) No.30882 of 2011)
Budhi Bewa and Ors. ...... Petitioners
-Versus-
Commissioner-cum-Secretary,
Revenue and Disaster Management,
Odisha and others ...... Opp. Parties
For Petitioners : Mr.Trilochan Barik
For Opp. Parties : Mr. Ashok Mohanty, Advocate General
(For O.P.Nos.1 to 3)
M/s. H.K.Panigrahi, B.K.Das & N.Tripathy
(For O.P. No.4)
Mr.J.Pattnaik, Sr. Advocate
M/s.B.Mohanty, T.K.Patnaik, A.Patnaik,
S.Patnaik, R.P.Ray, V.S.Rayaguru
& M.S.Rizvi
(For O.P. No.5)
(In W.P.(C) No.22838 of 2011)
Brahmani Muduli @ Bewa and Ors. ...... Petitioners
-Versus-
Chief Secretary and Chief
Development Commission, Odisha ...... Opp. Parties
For Petitioners : Mr.Trilochan Barik & R.C.Bhoi
For Opp. Parties : Mr. Ashok Mohanty, Advocate General
(For O.P.Nos.1 to 6)
Mr.S.K.Padhi, Sr. Advocate
M/s.M.Padhi, A.Das, B.Panigrahi,
H.K.Panigrahi, B.K.Das, N.Tripathy
& C.Samantray.
(For O.P. No.7)
(In W.P.(C) No.27628 of 2011)
Sankar Roul and Ors. ...... Petitioners
-Versus-
Commissioner-Cum-Secretary,
Revenue and Disaster Management,
Odisha and Ors. ...... Opp. Parties
For Petitioners : M/s.(Dr.)A.K.Mohapatra,
A.K.Mohapatra, N.C.Rout,
S.K.Padhi, S.K.Mishra & T.Dash
For Opp. Parties : Mr. Ashok Mohanty, Advocate General
(For O.P.No.1)
Mr.S.K.Padhi, Sr. Advocate
M/s.M.Padhi, B.Panigrahi,
B.K.Das, N.Tripathy, S.Das
& S.S.Mohanty.
(For O.P. No.2 & 4)
Mr.J.Pattnaik, Sr. Advocate,
M/s.B.Mohanty, T.Pattnaik, A.Pattnaik,
S.Patnaik, R.P.Ray, B.S.Rayaguru.
(For O.P. No.3)
(In W.P.(C) No.17476 of 2009)
Damodar Chayani & Ors. ...... Petitioners
-Versus-
State of Odisha and Ors. ...... Opp. Parties
For Petitioners : Mr.S.K.Das, Sr. Advocate
M/s.N.N.Mohapatra & S.K.Mohanty
For Opp. Parties : Mr. Ashok Mohanty, Advocate General
(For O.P.Nos.1 to 4)
Mr.J.Pattnaik, Sr. Advocate
M/s.D.Mohanty, T.Pattnaik, S.Pattnaik,
A.Pattnaik & B.S.Rayaguru
(For O.P. No.5)
Mr.S.K.Padhi, Sr. Advocate
M/s.M.Padhi, B.Padhi, H.K.Panigrahi,
B.K.Das, N.Tripathy
(For O.P.No.6)
(In W.P.(C) No.9326 of 2009)
Chaturbhuja Behera and 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 3)
Mr.S.K.Padhi, Sr. Advocate
M/s.M.Padhi, B.Panigrahi,
H.K.Panigrahi, B.K.Das, N.Tripathy
& J.K.Dash.
(For O.P. No.4)
(In W.P.(C) No.15042 of 2009)
Pramesh Ch. Mohapatra and 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 3 & 6)
Mr.J.Pattnaik, Sr. Advocate,
M/s.B.Mohanty, T.Pattnaik, A.Pattnaik,
S.Patnaik, R.P.Ray &
B.S.Rayaguru.
(For O.P. No.4)
Mr.Pinaki Mishra, Sr. Advocate
M/s. M.Padhi, A.Das & B.Panigrahi
(For O.P. No.5)
---------------
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').
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 in the
following manner. (The respective cases which fall under each
category are indicated under each head).
Challenge to Land Acquisition Proceedings undertaken
by the State Government for acquiring the land in four
villages namely, Rahangol, Dalua, Khanduali and
Category-I Kandarei, PS: Gurudijhatia, Tahasil: Athagarh, Dist:
Cuttack on the requisition made by IDCO for the
purpose of setting up of a thermal power plant by KVK.
01. W.P.(C) No.15042 of 2009
02. W.P.(C) No.30882 of 2011
03. W.P.(C) No.6715 of 2011
04. W.P.(C) No.22838 of 2011
05. W.P.(C) No.17476 of 2009
RVPET No.81 of 2010
06. W.P.(C) No.9326 of 2009
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-II
& III 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.P.(C) No.15988 of 2009
13. W.P.(C) No.27845 of 2011
Challenge to lack of permissions and clearances for
Category-IV construction of the project, lack of forest clearance,
lack of wildlife clearance.
14. W.P.(C) No.9384 of 2012
15. W.A. No.321 of 2011
16. W.P.(C) No.30369 of 2011
17. W.P.(C) No.3926 of 2010
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 Category-I i.e.
challenge to Land Acquisition Proceedings. It would be pertinent to
note herein that separate judgment will be delivered for each category
of issue raised separately.
4. In the background of the aforesaid challenge it now become
essential to take note of certain facts, which are not in dispute. A
Memorandum of Understanding (hereinafter referred to as 'MOU') was
signed between the Government of Odisha and KVK on 26.09.2006
and the relevant portion of the said MOU relating to land reads as
follows:
"A. Land:(i) KNPL will require
approximately 1000 acres of land for the purpose of
setting up the thermal power plant and associates
facilities (colony, coal transportation system, water
transportation system, power evacuation system,
ash disposal and other infrastructural facilities).
ii) KNPL agrees to fully comply with the
stipulations of the Government as per its policy in
this regard. For rehabilitation of displaced families,
rehabilitation and Resettlement (R&R) package as
notified by the State Government as well as any
special stipulation relating to scheduled areas as
applicable shall be followed.
iii) The government agrees to acquire the
required land as per Clause(i) above and hand over
the required land free from all encumbrances to
KNPL through Odisha Industrial Infrastructure
Development Corporation (IDCO) for the project and
allied facilities.
iv) KNPL agrees to pay the cost of the land
to IDCO in case the land is acquired for the purpose
and to the Revenue authorities in case the land is
Government land along with the rehabilitation cost
and other related charges. In case the Project is
abandoned for some reason or other, all required
rehabilitation cost shall be borne by the KNPL in the
same manner as if the project has been
implemented. All incidental charges paid by the
KNPL for such land acquisition paid to various
authorities will stand forfeited."
5. The K.V.K. had selected land for acquisition originally at
Gurudijhatia in Cuttack district and, accordingly, the Department of
Energy, Government of Odisha had approved the acquisition of private
land in March, 2007. The Department of Revenue & Disaster
Management pursuant to such an administrative approval had issued
a notification under Section 4(1) of the Land Acquisition Act, 1894
(hereinafter referred to as the 'L.A. Act'). It is admitted that certain
objections were raised before the Collector, Cuttack. During hearing of
objections and as a consequence of which, the said notification under
Section 4(1) was not proceeded with.
Thereafter, a new site at a new location comprising of
villages-Rahangol, Dalua, Khanduali, Kandarei, Rampei and Khuntuni
of Athagarh Tahasil was identified. The new proposal as requested by
KVK was for total area of 927.45 acres, which included:
(i) non-forest Government land of 207.69 acres;
(ii) forest land of 192.90 acres; and
(iii) private land of 526.96 acres.
The Industrial Promotion and Investment Corporation of
Odisha (IPICOL, the Nodal agency for setting up of the industries in
the State) recommended that the concerned land may be acquired.
Under cover of their letter dated 19.02.2008, the IPICOL enclosed a
copy of the land schedule to the Department of Energy and the
Department of Energy on 26.06.2008 issued an administrative
approval "for acquisition of private land for the purpose of power
plant proposed by the KVK". The administrative approval was for
acquisition of private land measuring 548.38 acres in the specified
four villages of Athagarh Tahasil of Cuttack district and it is further
stated that the acquisition of private land was for the purpose of
proposed power plant project of KVK. After the administrative
approval was accorded, a fresh notice under Section 4(1) of the Land
Acquisition Act was thereafter issued by the Revenue & Disaster
Management Department of the Government of Odisha on
11.07.2008 for all the land situated in the four villages published in
the Odisha Gazette on 02.08.2008 on the requisition made by the
IDCO a sample copy of which is extracted herein below:
"ORISSA GAZETTEE
EXTRAORDINARY
PUBLISHED BY AUTHORITY
No.1461 CUTTACK SATURDAY AUGUST 2, 2008/SRAVANA 11,1930
REVENUE & DISASTER MANAGEMENT DEPARTMENT
NOTIFICATION
DATE 11TH JULY 2008
No.29794-LA (B)-53/2008-Cuttack-RDM-Govt. of Orissa
being satisfied that acquisition of land in village Rahangole
P.S: Gurudijhatia, Tahesil Athagarh, District Cuttack is
required to be made immediately for establishment of
Industry by IDCO for the public interest at the expense of the
Govt. It is therefore notified that land measuring 254.821
Acres in the above village is required to be acquired for the
above the purpose as per the appended land schedule.
This notification Under Section 4(1) of 1894 as amended as
per LA (Amendment) Act, 1984 is published for the
information of all concerned.
District Administrative and the Project Proponent will take
full responsibility of implementation of rehabilitation &
Resettlement Policy, 2006 of Government of Orissa.
A map showing the above land will be available for inspection
during office hours in the office of the Land Acquisition
Collector, Cuttack.
Land Schedule is attached herewith.
By the Order of the Governor,
Mohan Prasad Mishra,
Joint Secretary"
6. A total number of 62 notices were issued to 62 individuals
calling upon them to submit their objections, if any, and objection
petitions were received from 62 objectors. From among the objections
received, 47 petitioners have attended the hearing in the chamber of
the Collector, Cuttack on 25.06.2009 and 15 numbers of objectors did
not attend the hearing though notices were served on them. All
objections were identical in nature and cyclostyled and two category of
objections were filed which are quoted hereunder.
"ENGLISH TRANSLATION OF OBJECTIONS FILED AGAINST
NOTIFICATION ISSUED U/S.4(1)-GENERAL PERSONS
L.A. Case No.8/08
TO
The Land Acquisition Officer, Cuttack.
Sub: In the matter of 4(1) notice issued for acquisition of
the following land.
Ref:Notification No.29813 dt.11.07.08 u/s 4(1) of the L.A. Act.
Sir,
We Sri Panu Sahu, S/o Late Natha Sahu, village-Khanduali,
Panchayat-Kandarei, Ps-Gurudijhatia, Dist-Cuttack states that
the following lands are recorded in our name and you have
issued notice u/s.4(1) to acquire those lands for KVK Nilachal
Power (Pvt.) Ltd.
We state that the said land is our only property and we have
no other land except this land. We are maintaining us as well as
our family by cultivating this land. Since we are not listed in the
displaced list, we cannot maintain our family if this land will be
acquired. We will be unable to purchase any land at distance
places by the amount we will receive in lieu of the land, also we
will not be able to cultivate the land after purchased. We will be
landless if this land will be acquired and there will be no other
means of our livelihood. So we will not give this land by any
means.
Therefore we humbly request you to delete this land from the
list of acquisition.
Sd/-
08/08/2008 Panu Sahoo
Signature
Scheduled of Land
Village-Khanduali
Khata No.106/118
Plot No.46
Area-0.64
ENGLISH TRANSLATION OF OBJECTIONS FILED AGAINST
NOTIFICATION ISSUED U/S.4(1)-ST/SC PERSONS
L.A. Case No.10/08
Respected,
Land Acquisition Officer,
Cuttack.
Sub: Regarding Notice U/S 4(1) of the L.A. Act for
Acquisition of the following lands.
Ref: Notification No.29807 dt.11.07.08 u/s 4(1) of the L.A.
Act.
Sir,
We belong to Scheduled Tribe & Scheduled Caste community,
the following land stands recorded in our name and 4(1) Notice
has been issued to us for acquisition of the said land to give to
Nilachal Company.
It may be mentioned here that the Govt. has enacted laws
with a view not to make landless to SC & ST persons and there
will be violation of the said law if we are made landless. We are
maintaining our family by cultivating this land. We cannot
transfer this land.
Therefore we humbly request you to delete this land from the
list of acquisition.
Copy forwarded to the Sub-Collector, Athagarh for
information with request to take adequate steps not to acquire
this land.
Bilash Naik
S/o. Nabina Naik Sd/-
08/08/2008 (Bilash Naik)
Signature
Dalua
Scheduled of Land
Village-Dalua
Khata No.44"
Plot No.311/503, 313/504, 358,344,
304/500,359,375,362,364,368,370,
340,341,348,350,351,327
Area- Ac.3.990 dec.
7. Apart from the aforesaid identical objections, one objector,
namely, Damodar Chaini, petitioner in the writ petition i.e. W.P.(C)
No.17476 of 2009 filed a detailed objection which would be dealt with
separately. But, it is important to take note herein that the said
objector did, in fact, participate at the hearing. Out of the 62
objectors, 47 attended the hearing and the 15 who did not participate
at the hearing, sought for adjournment on the ground of non-
availability of the lawyer on the said date. After conclusion of the
hearing, the records of the proceedings were duly sent to the State
Government along with the report of the Collector, Cuttack. The report
of the Collector as well as the objections filed by the land losers and
objectors were duly considered by the State Government and before
acquisition of land, the State Government carried out a "socio-
economic survey" in view of the direction issued by this Court vide its
order dated 27.11.2008 passed in W.P.(C) No.16822 of 2008. The
report of the Collector after conclusion of the hearing under Section 5-
A is extracted herein below:
"XXX Since 5-A hearing is a quasi judicial and quasi
administrative proceeding where a report is require
to be submitted to the Govt. for final decision,
Individual notices were issued to the petitioners, but
time petitions were not considered keeping in view
the time stipulation provided in the Act. For each
stage of operation and individual grievance already
submitted in writing in their respective petitions
filed.
Bereft of details of Individual claim, claims of
petitioners/Land Owners in general are as under.
1. Land in the Area are fertile.
2. Petitioners have no occupation other than
agriculture.
3. The compensation amount decided in L.A.
proceeding being inadequate, higher
compensation may be paid.
4. They will become Land less, if acquisition
of their land is made.
5. As their lands are to be acquired, they are
to be declared as displaced.
6. Adequate rehabilitation and employment
be provided to land owners affected by land
acquisition.
The petitioners/land owners present in the hearing
were heard individually with reference to their
individual petitions. Perusal of the petitions filed
U/s. 5-A and time petitions filed by some land
owners revealed that all most all are computer
generated applications with identical claims
containing signatures of petitioners/Land owners at
the bottom. However, the individual objection co-
relating land acquisition in all the villages appear to
have one tenor in its spirit. The objections filed
appear to have its genesis more in apprehension and
public rumor that in reality. In any land acquisition,
for any purpose common apprehension expressed by
the petitioners are but obvious, as the rural
agricultural land owners are going to lose their
ancestral land during acquisition. However, R. & R.
Policy, 2006 which is said to be the best R & R
Policy, in the country can redress the grievances of
the petitioners/land owners through its meaningful
implementation.
Miss Madhuri Mishra present on behalf of
the IDCO, the Requisitioning Authority, opined that
the individual grievance of the land
owners/petitioners will be addressed to under the
relevant provisions of R & R POolicy, 2006 co-
relating issues on compensation, displacement,
rehabilitation and employment etc.
Video C.D. of entire proceeding is attached
herewith for reference.
APPROVED
COLLECTOR, CUTTACK"
8. Thereafter, the State Government issued declaration under
Section 6(1) of the Land Acquisition Act, 1894 on 21.07.2009
published for all the concerned villages and a sample copy of the
Odisha Gazette on 30th July, 2009 is quoted hereunder:
"ORISSA GAZETTEE
EXTRAORDINARY
PUBLISHED BY AUTHORITY
No.1102 CUTTACK SATURDAY July 30, 2009/SRAVANA 8,1931
REVENUE & DISASTER MANAGEMENT DEPARTMENT
NOTIFICATION
DATE 21ST JULY 2009
No.28793-LA (A)-51/2008-Cuttack-RDM-Govt. of Orissa
being satisfied that acquisition of land in village
Rahangole P.S: Gurudijhatia, Tahesil Athagarh, District
Cuttack is required to be made immediately for
establishment of Industry by IDCO for the public
interest at the expense of the Govt., it is therefore
declared that land measuring 87.020 Acres in the above
village is required to be acquired for the above the
purpose.
This declaration as per provision under Section 6(1) of
the Land Acquisition (Amendment) Act, 1984 is
published for the information of all concerned.
The land schedules published under Section 4(1)
Notification No.29794 dt.11.07.2008 and Orissa Gazette
No.1461 dt.2.08.2008 after the following modification
are hereby covered under the above Declaration.
A map showing the above land will be available for
inspection during office hours in the office of the Land
Acquisition Collector, Cuttack.
Land Schedule is attached herewith
By the Order of the Governor,
Utshabananda Behera,
Joint Secretary"
9. In the aforesaid factual backdrop, it would be appropriate to
extract hereunder in a tabular form, the extent of land covered by the
project and the extent of land i.e. covered by the present challenge in
the batch of writ application which is quoted hereunder:
LAND STATUS OF KVK NILACHAL POWER PVT. LTD.
Total land Private Land Govt. Land
requirement Land Land Notified u/s Total Lease Lease to Total
purchased 6(1) of L.A. Act Sanctioned be Govt.
by 1894 in favour sanctioned Land
company Area Area not of IDCO by in favour
directly by covered under Collector of IDCO
negotiation under challenge by
writ Collector
petition
A+B A B
834.558 260.260 106.603* 174.097 540.960 188.720 104.878** 293.598
From the aforesaid table, it would be clear that whereas the
land covered under Section 4(1) notification dated 11.07.2008 in the
four villages was a total of 540 Acres, the land covered under Section
6(1) notification dated 21.08.2009 was reduced to 280.7 Acres. The
total number of awardees in the four villages were 326 persons and
from amongst them 264 persons owning 174.09 acres, have received
their compensation/disbursement and have chosen not to challenge
the land acquisition proceeding before this Court.
From amongst the land losers, the petitioners who have
challenged the acquisition in various writ applications in this batch
are 18 in number and hold 106.03 acres of land and during pendency
of this writ petition, a total number of 19 petitioners owning about
15.844 acres have also received their compensation. Therefore,
effectively the number of aggrieved persons is now limited to 61
persons holding a total area of 90.759 acres.
10. In the aforesaid factual backdrop, we will now record the
submissions of the parties.
Category-I- Challenge to Land Acquisition Proceedings
11. The petitioners have raised the contention that the State
Government should have acquired the land under Part-VII and not
part-II of the Land Acquisition Act, 1894 and acquiring the land under
Part-II amounts to a "colourable exercise of power" by the State
Government for the benefit of a private party namely KVK.
12. A further issue raised by the petitioners in this batch of writ
petitions was that the Collector forwarded his report but, without
assigning any detailed reason for each individual case as required
under Section 5-A of the Land Acquisition Act, which grossly violates
the rights of the petitioners and, therefore, defeats the independent
application of mind by the State and consequently vitiates the entire
proceeding. It is further submitted that Section 6 notification under
the Land Acquisition Act dated 21.07.2009 published in the Odisha
Gazette on 30th July, 2009 being beyond one year from the date of
issue of notification under Section4(1) of the L.A Act which is said to
have been issued on 17.07.2008 rendered the same ab initio, illegal
and void. The petitioners place reliance on the following citations:-
1. Girnar Traders(3)v.State of Maharashtra,(2011)3 SCC 1.
2. Dev Sharan v. State of U.P, (2011) 4 SCC 769.
3. Radhy Shyam v. State of U.P., (2011) 5 SCC 553.
4. Tukaram Kana Joshi v. MIDC, (2013) 1 SCC 353.
5. Kamal Trading v. State of W.B, (2012) 2 SCC 25.
6. B.Anjanappa v. Vyalikaval Housing,(2012)10 SCC 184.
7. Rajiv Pujahari v. State of Orissa, 2010(II)ILR Cutt 1008
13. The essential contention is that Section 3(f) of the L.A. Act
expressly excludes "acquisition for companies" from the definition of
"public purpose". The definition of public purpose was amended in the
year 1984 to specifically exclude companies. In this respect, it would
be essential to take note of Section 3(f) of the Land Acquisition Act,
1894 as it existed prior to the 1984 amendment, as well as, post 1984
amendment.
Pre 1984 Amendment
"(f) the expression "public purpose"
includes the provision of village-sites in districts in
which the (appropriate Government) shall have
declared by notification in the Official Gazette that it
is customary for the Government to make such
provision; and"
Post Amendment
"(f) the expression "public Purpose' includes-
(i) the provision of village-sites, or the
extension planned development or
improvement of existing village-site;
(ii) the provision of land for town or
rural planning;
(iii) the provision of land for planned
development of land from public
funds in pursuance of any scheme or
policy of Government and
subsequent disposal thereof in whole
or in part by lease, assignment or
outright sale with the object of
securing further development as
planned;
(iv) the provision of land for a
corporation owned or controlled by
the State;
(v) the provision of land for residential
purposes to the poor or landless or to
persons residing in areas affected by
natural calamities, or to persons
displaced or affected by reason of the
implementation of any scheme
undertaken by Government, any
local authority or a corporation
owned or controlled by the State;
(vi) the provision of land for carrying out
any educational, housing, health or
slum clearance scheme sponsored by
Government or by any authority
established by Government for
carrying out any such scheme, or,
with the prior approval of the
appropriate Government, by a local
authority, or a society registered
under the Societies Registration Act,
1860, or under any corresponding
law for the time being in force in a
State, or a co-operative society within
the meaning of any law relating to
co-operative societies for the time
being in force in any State;
(vii) the provision of land for any other
scheme of development sponsored by
Government, or, with the prior
approval of the appropriate
Government, by a local authority;
(viii) the provision of any premises or
building for locating a public office,
but does not include acquisition of
land for Companies;"
14. The facts that have been highlighted by the petitioner in
support of their aforesaid contentions is that KVK had on its own
selected site and made a request to the Government of Odisha, IPICOL
and IDCO requesting the said land be acquired and administrative
approval for acquisition was granted for KVK alone. Therefore, the
administrative approval being the foundation of all subsequent steps
taken in the acquisition of land by the Government, the acquisition
was for a specific company at its cost and, therefore, such acquisition
for a company cannot come within the definition of public purpose
under section 3(f) of the Land Acquisition Act (As amended in 1984)
since, from the date of the 1984 amendment, acquisition for
"companies" is expressly barred from the scope of "public purpose".
15. The next contention raised by the petitioner in this respect
is that IDCO, a creature of the State Legislature and corporation of
the State is bound by the statute i.e. IDCO Act and Rules thereunder
and acquisition can only be made by IDCO for the purpose of setting
up and "industrial area" which is declared to be industrial area by the
State Government by notification. It is alleged that no such
notification has been issued by the Government of Odisha declaring
the acquired area as an industrial area and, therefore, IDCO was not
competent to seek such acquisition under its authority of law and
further that the acquisition of land on the basis of requisition made by
the IDCO is merely a cloak to give benefit of part-II of the Land
Acquisition Act to a private company for which it is not otherwise
entitled. In this respect reliance is placed on the following judgments:
1. Greater Noida v. Devendra Kumar, (2011)12 SCC 375
2. Royal Orchid Hotels v. G.Jayarama Reddy,(2011)10 SCC 608
3. State of Tamil Nadu v. K.Shyam Sunder,(2011)8SCC 737
4. Coal India v. Ananta Saha, (2011) 5 SCC 142
5. Nishakar Khatua v. State of Orissa & Ors.,(2012)I ILR
Cutt.19
6. Rajiv Pujari v. State of Orissa & Ors., 2010(II)ILR Cutt. 1008
7. Centre for PIL v. U.O.I, (2012) 3 SCC 1
8. Devinder Singh v. State of Punjab, (2008) 1 SCC 728
9. Surinder Singh Brar v. Union of India, (2013) 1 SCC 403.
Submissions of learned Advocate General
16. It is submitted by the learned Advocate General that the
State is committed to encouraging the Private Sectors to set up Power
Plant for meeting the needs of the State Industrial Sector and for
domestic consumption. Therefore, acquisition for such purpose
satisfies the requirements of the definition under Section 3 (f) of the
Land Acquisition Act i.e. "public purpose". It is asserted that the term
"public purpose" is an "inclusive definition" and setting up of a
thermal power plant by a private entrepreneur, definitely comes within
the definition of Section 3 (f) of the Land Acquisition Act. It is further
submitted that the acquisition in the present case has been made for
and on behalf of IDCO, a Government of Orissa Statutory Corporation.
Therefore, under Section 3 (f) (iv) of the Land Acquisition Act acquiring
land for the purpose of a Corporation owned or controlled by the State
is sufficient for the applicability of Section 3 (f) of the Land Acquisition
Act. On a perusal of the notification made under Sections 4(1) and
6(1) of the Land Acquisition Act and the said declaration it would be
clear that the entire land acquisition proceedings falls under Part II of
the Land Acquisition Act and not Part-VII of the Land Acquisition Act
as alleged by the petitioners.
It is further highlighted by the Advocate General that the
MOU entered into between the State of Orissa and KVK contains
various salient features which are in the interest of the State and its
people at large. Setting up of a thermal power plant would be
beneficial to the State which is power deficient. In this regard, learned
Advocate General has placed reliance on certain clauses of the MoU,
which are quoted herein below:
"1(i) Power generated in excess of 80% Plant Load
Factor (PLF) from the Thermal Power Plant will be
made available to the State by KNPL at variable cost
plus incentive (the incentive would be as fixed by
Central Electricity Regulatory Commission).
(iii) A nominated agency(s) authorized by Government
will have the right to purchase up to 25% of power sent
out from the Thermal Power Plant(s) excluding the
quantum of power indicated at item (i) & (ii) under
terms of Power Purchase Agreement to be mutually
agreed upon on the basis of existing laws and
regulations in force and the tariff for such power
purchase will be determined by the appropriate
Regulatory Commission."
17. It is further submitted on behalf of the State that the
allegation that the KVK has paid the cost of the land, is wholly false
and incorrect. Reference is made to Section-20 of the Industrial
Infrastructure Developments Corporation Act, 1980 (IDCO Act), which
is as follows:
"20. Corporation's fund- The Corporation shall have
and maintain its own fund, to which shall be
credited-
(a) all amounts received by the Corporation from the
State Government by way of grants, subventions,
loans, advances or otherwise;
(b) all fees, costs and charges received by the
Corporation under this Act;
(c) all amounts received by the Corporation from the
disposal of lands, buildings and other properties
movable and immovable and other transactions;
(d) all amounts received by the Corporation by way of
rents and profits or in any other manner or from any
other source;
(e) all amounts received by the Corporation from
Government undertakings, companies, Financial
Institutions, Commercial Banks or from any other
source."
18. Therefore, the learned Advocate General submits once
payment is made by the KVK to the IDCO, such payments made by
KVK get merged with IDCO's fund and consequently becomes part of
the Corporation's fund. Therefore, any money paid to the Government
by IDCO for the land acquisition comes only from the funds of the
Corporation. Reliance was also placed on Section 6(1)(ii) Explanation-2
of the Land Acquisition Act, which is quoted hereunder:
"Section-6(1)(ii) Explanation-2 of the Land
Acquisition Act provides that "where the compensation
to be awarded for such property is to be paid out of the
funds of a Corporation owned or controlled by the
State, such compensation shall be deemed to be
compensation paid out of public revenues."
19. Therefore, it is submitted that the IDCO being a State
Corporation, the funds of IDCO is a "public fund" and consequently
since no payment has been received by the State Government from the
KVK and payments instead have only been received from IDCO,
therefore, Part-VII of the Land Acquisition Act has no application and
there is no violation of the condition imposed under Part-II. It is
further submitted that the acquisition of land for IDCO under Para-II
of the Land Acquisition Act and lease thereof to KVK thereafter, is fully
justified in the facts and circumstances of the present case and there
in fact is "no colourable exercise of power". In this context, reliance is
placed on the judgment of the Hon'ble Supreme Court i.e. (i) (2003) 10
SCC 626-Pratibha Nema and (ii) (2010) 10 SCC 282-Nand Kishore
Gupta.
It is further submitted that the term "public purpose" as
defined in Section 3(f) of the Land Acquisition Act has to be interpreted
as an "inclusive definition" and has to be given the widest meaning.
Reliance is also placed on the judgment of the Hon'ble Supreme Court
in the case of Sooraram Pratap Reddy, (2008) 9 SCC 552.
20. Insofar as the date of publication of Section 4(1) notification
is concerned, the State have filed additional counter affidavit on
08.04.2013 annexing as Annexure-J/3 indicating Sections 4(1) and
6(1) Notification of various revenue villages which is quoted
hereinbelow:
Date wise information on 4(1), 6(1) & order u/s.7 Notifications for acquisition
of land in Village-Dalua, Rahangol, Kandarei & Khanduali for IDCO
Balance 4(1) 6(1) Orders
Name of Area Withdra area for Notifica Date of validation of 4(1) Declarat Date of validation of 6(1) u/s.7
village wal acquisit tion No. Notification ion No. Declaration No. &
ion & Dt. & Dt. Dt.
Paper Public Gazette Paper Public Gazette
Publicati Notice Publicati Publicati Notice Publicati
on Dt. Dt. on no.& on Dt. Dt. on no.&
29807/ dt. 28800/ dt. 16267/
Dalua 63.930 22.230 41.700 11.07.08 21.07.09 23.4.10
28.7.08 19.7.08 1463/ 02.8.09 28.7.09 1101/
2.8.08 30.7.09
Rahangol 254.821 167.801 87.020 29794/ 04.8.08 18.7.08 1461/ 28793/ 02.8.09 28.7.09 1102/ 16279/
11.7.08 2.8.08 21.7.09 30.7.09 23.4.10
Kandarei 114.440 26.810 87.630 29800/ 28.7.08 19.7.08 1462/ 28779/ 2.8.09 28.7.09 1101/ 13271/
11.7.08 2.8.08 23.4.09 30.7.09 23.4.10
Khanduali 107.770 43.420 64.350 29813/ 28.7.08 18.7.08 1464/ 28786/ 2.8.09 28.7.09 1102/ 16275/
11.7.08 2.8.08 21.7.09 30.7.09 23.4.10
Total 540.961 260.261 280.700
Therefore, the contention of the petitioners that Section 6
declarations under the Land Acquisition Act was not within one year,
is wholly incorrect.
21. Learned Advocate General further contends that the
Collector, who carried out hearing of the objections submitted under
Section 5-A of the Land Acquisition Act, submitted his report to the
State. Since the persons who had sought adjournment and were
denied had submitted identical objections having no distinguishing
features from the objections raised by the 45 persons, who have been
heard. Since all the objections were submitted were identical in nature,
having no distinguishing features, no prejudice can be said to have
been caused to those persons whose adjournment applications came to
be rejected.
Learned Advocate General further submitted that further
allegation that adequate opportunity had not been given to the
objectors under Section 5-A, is wholly without substance and even
before the acquisition of the land, a "socio-economic survey" was
carried out in compliance to this Court's order dated 27.11.2008
passed in W.P.(C) No.16822 of 2008, the relevant portion of which is
quoted herein below:
"Without going into the merit of the case one
way or other, we dispose of the writ petition with a
direction to the petitioners to move a representation
before the appropriate concerned authority to ventilate
their grievances which shall be considered and
disposed of as expeditiously as possible preferably
within a period of two months from the date of filing of
the said representation along with a certified copy of
this order and copy of the writ petition."
22. Pursuant to the aforesaid direction, the Revenue Divisional
Commissioner (Central) granted personal hearing to the land oustees
on 25.11.2010. The issues raised in the present batch of writ
application relate directly to the acquisition of land and the same
allegations regarding violation of Forest and Environment, Topography
and Cropping pattern, flora and fauna habitat and Socio Economic
Issues had been raised. The RDC's report clearly indicates as follows:
"Enquiry report of Sri P.K. Mohapatra, I.A.S.,
Revenue Divisional Commissioner, Central
Division, Cuttack into the representation of
Charidesha Krushak Surakhya Sangha of Kanderai
G.P., under Athagarh Tahasil.
-------
Pursuant to Government in Revenue & D.M.
Department Letter No.47518, dt.19.11.2010, the
undersigned initiated an enquiry into the
representation of Charidesha Krushak Surakhya
Sangha of Kanderai G.P., in connection with the issues
such as not to notify Agricultural land, Forest land etc.
of Kanderai G.P. of Athagarh Tahasil and Athagarh
Sub-Division for the purpose of Industrial
development.
The date was fixed to 25.11.2010 at 11 A.M.
for enquiry. All the petitioners of the representation
were served notices to attend the said enquiry. The
enquiry comprised an open public hearing followed by
spot visit and examination of official records. The
public hearing was held in the Gram Panchayat Office
at Kanderai, in presence of representatives of
Charidesha Krushak Surakhya Sangha, Kanderai G.P.,
Collector, Cuttack, S.P., Cuttack, D.F.O., Athagarh,
Executive Engineer, Drainage Division, Cuttack, Sub-
Collector, Athagarh, other Government Officials,
Managing Director and other officials of the Company
and the Sarapanch of Kanderai G.P. Over and above
these, the public hearing was also attended by a vast
majority of the villagers of the Kanderai G.P.
The process of enquiry was video recorded to
ensure fairness and transparency.
For the purpose of enquiry the prima
contentions and concerns of the petitioners are broadly
categorized into the following.
A) Land Matter,
B) Forest and Environment,
C) Topography and Cropping Pattern
D) Socio-economic issues.
Land Matters
The genesis of the land matter arises from a
Writ petition filed in W.P.(C) 16822/08 before the
Hon'ble High Court of Odisha, seeking a direction to
the State Government in Revenue & D.M. Department
not to give protection U/s.73(c) of OLR Act in favour of
KVK Nilachal Power, as well as a direction to both Sub-
Collector and Tahasildar, Athagarh to initiate
proceedings against the said company under the
relevant provisions of the OLR Act. The Hon'ble High
Court of Odisha was pleased to dispose of the writ
petition on 27.11.2008 with a direction to the
petitioners to move a representation before the
appropriate authority to ventilate the grievances.
In their representation the prime contention
alludes to following:
That the company has purchased land
directly from the farmers prior to the notification U/S
73(c) of OLR Act and violating the provisions of Sec.22
of the said Act.
FOREST & ENVIRONMENT
The petitioners also allege regarding
acquisition and alienation of both Government and
non-Government land which are Forest land. They
contend that the project area is surrounded with forest
land and especially by Reserved Forest. Further they
have contended about the existence of an Elephant
corridor.
It is further contended that the proposed
Thermal Power Plant will affect the inhabitants living
around with heat, ash, coal dust and other chemicals.
Topography & Cropping Pattern
The petitioners have alleged that the project
site and its surrounding areas have perennial water
sources which naturally irrigate agricultural land in
Dalua, Kanderai and Rehangola villages. The
representation also refers to 2 Lift Irrigation points
inside the project site capable of irrigating more than
100 acres of land. The land also yields two crops a year
and such land should not be acquired for industries.
Socio-economic issues
The petitioners emphasized that 62% of the
population of Kandarai G.P. are ST/SC communities
who will not only be deprived of their livelihood but
also rendered landless.
During course of public hearing the
representatives of Charidesh Krushak Suraskhya
Sangha namely, President Sri Narayan Sahu and
Secretary, Sri Narendra Mohapatra deposed before me
in persoin. Besides one Dolagobinda Rana of
Rahangola, Pramesh Chandra Moihapatra of Kandrei
and Sudam Ch. Beura, Sarapanch of Kandarei G.P.
also deposed before me. Besides the general opinuion
of the villagers was taken about the project.
FINDINGS
A. LAND MATTERS
The main allegation in land matter is that the
company has purchased land directly from farmers
before the notification by Govt. u/s.73(c) of OLR Act
and that the company has also purchased land from
SC & ST persons in violation of Sec.22 of the said Act.
On perusal of records of Tahasil Office, it is
found that the President of Charidesh Krushaka
Sangha Sri Narayana Sahoo had filed a grievance
before the Tahasildar, Athagarh toi execute the order of
the Hon'ble High Court dated 27.11.2008 vide W.P.(C)
No.16822 of 2008. The main concern of the grievance
was initiation of ceiling case under chapter 4 of the
O.L.R. Act, 1960 against M/s. K.V.K. Nilachala Power
Pvt. Ltd., who has purchased private land directly
before obtaining the permission under 73(C) of O.L.R.
Act.
It was ascertained that the Company has
purchased a total area of Ac.188.37 dec. of land
without any statutory authority for which Rev. Misc.
Case vide No.27/08-09 was initiated on 07.01.2009
after following the direction of the Hon'ble High Court
in W.P.(C) 16822 of 2008.
Further on 16.12.2009 basing on the report
of R.I.Khuntuni a ceiling case under O.L.R. Act.
bearing No.1/2009 was initiated, as the entire area
owned by the authorized officer M/s. K.V.K. Power Pvt.
Ltd. is more than 10 standard acre. The authorized
Officer of the company was directed to file return in
Form No.12 u/s.40(A) of O.L.R. Act. Subsequently a
W.P.(C) bearing No.19908 of 2009 has been filed by the
company and interim stay was granted by the Hon'ble
High Court till 21.01.2010. Further in Misc. Case
No.17266 of 2009 on dated 04.02.2010, Hon'ble High
Court has suspended the notice dated 16.12.2009
u/s.40(A) of O.L.R. Act of the Tahasildar till next date.
Further progress in the OLR Case will depend on the
disposal of the case pending on the Hon'ble High
Court.
The next allegation is that the company has
violated Section 22 of Orissa Land Reforms Act (OLR
Act) where by it has purchased land directly from SC &
ST persons without obtaining permission from the
competent authority. On verification of the records and
report of the Sub-Collector, it is ascertained that the
company has not executed a single sale deed in the
Sub-registrar's Office regarding purchase of land by
the company from any SC & ST persons directly.
However, the company has entered in to an agreement
with 3 farmers belonging to SC & ST community for
purchase of 4.92 Ac. Land but no sale deed has been
executed. Hence Section 22 of OLR Act has not been
violated.
It is further ascertained that the Government
of Odisha in Revenue & D.M. Department have issued
notification under 4(1) of the L.A.Act, on 11.7.08. In
respect of Khanduali, Rahanagol, Kandarei and Dalua
villages. Consequently 62 nos. of objections, including
8 petitioners, were filed under Section 5-'A' of the said
Act. The entire hearing by the Collector, Cuttack has
been video recorded and submitted along with the
proceedings to the Government in Rev. &
D.M.Department, Thereafter, declaration U/S6(1) of LA
Act have been notified by the Government in respect of
these 4 villages. The present land acquisition process
is being carried on in accordance with law except for
the land which the company has directly purchased.
B. FOREST & ENVIRONMENT
The petitioners have alleged that the
company have proposed to acquire 207.69 Ac. of non-
Govt. forest land and 192.90 Ac of forest land. The
DFO, Athagarh who was present during the inquiry
informed that the Project is not a part of the Reserve
Forest. This has been de-notified vide Government of
Orissa Notification No.16282-'D' dt.30.10.1953. The
land classified as Gramya Jungle comes to only 125.85
Ac. For which the requisitioning authority has
submitted proposal for forest diversion.
Further there is no Elephant corridor inside
the project area. The nearest Elephant corridor has
been identified near Dabagadia which is about 5.5 kms
from the project area.
As regards concerns of the petitioners
regarding pollution and possible impact of the project
on the environment, M/s.KVK Nilachal Power Pvt. Ltd
has already been given Environment clearance by the
Ministry of Environment and Forest vide their letter
No.J-13011/51/08-1A II(T) dt.18.2.09.
C. Topography & Cropping Pattern
The petitioners have alleged that the project
area and its surrounding area have a perennial water
source which naturally irrigate agricultural land in
Dalua, Kanderi and Rahangola villages, It is a fact that
the Barajora Nala drainage system passes through the
proposed plant site and the existing drain runs
through flat terrain without embankments on any side.
The Company i.e. KVK Nilachal Power Pvt. Ltd. has
submitted a proposal to the E.E., Drainage Division,
Cuttack to divert the drain outside, adjoining the
boundary of the acquired area. The company has
agreed to pay the direct and indirect expenses to be
incurred for its construction, maintenance and
monitoring of the system, along with any land
acquisition further required for the purpose.
There were two LI points in the project area.
The villagers informed that since people are not taking
any interest in agriculture, the two LI points have been
defunct and damaged. The petitioners have alleged
that the area produces two crops and it is a irrigated
area. It is ascertained from the revenue records that
this is a rain-fed area and there is no regular irrigation
source other than two defunct LI points. Generally,
farmers grow paddy during Khariff season and
vegetable in Rabi season. It is not an Irrigated area.
Since the drain will not be affected by the company as
it will be properly relocated, the farmers will not be
affected from the Irrigation benefit they derive from this
drain.
D. Socio-economic Issues
The petitioners have alleged that this
Panchayat has 62% of the population belonging to SC
& ST. However, as per 2001 census figures the total
number of SC population inhabiting in the 4 villages
notified for the company by the Government in
Revenue & D.M. Department is 9.6% only and the S.T.
population 38.8%. Adequate compensation under the
provisions of Rehabilitation and Resettlement Policy
2006 of Govt. of Odisha will address such grievances
and also augment their general standard of living
through employment generation.
Out of the total project area of 975.00 Ac, the
SC & ST population only occupy 120 Ac. of land. All
these people who will be losing land would be getting
permanent jobs in the company as per the
Rehabilitation & Resettlement Police, 2006 of
Government of Orissa. Under this policy, the
Rehabilitation & Periphery Development Advisory
Committee will be constituted which shall look into all
local needs of the villagers including roads,
communication, health, education etc.
During my inquiry, a large number of
villagers including the Sarapanch and the
representatives of Charidesha Krushak Sangha were
present. The Charidesha Krushak Sangha is an
Organization registered in 2009 although the company
has started its activities in 2008. Although the
Charidesha Krushak Sangha is agitating for some good
causes, they have very few supporters. The genuine
concerns expressed by them are being adequately
taken care of, but some concerns are without basis.
Almost all the villagers present during my inquiry
supported the project as it will improve the socio-
economic condition and provide employment to the
local people. Since, in Orissa we have R & R Police,
2006 under which RPDAC is functioning, local needs
can easily be addressed.
Sd/
Revenue Divisional Commissioner,
Central Division, Cuttack."
23. The Learned Advocate General placed reliance on the
"Industrial Policy Resolution of the State of Orissa, 2007" and the
definition of the term "Infrastructure Project" as found in Annexure-1
thereof at Clause-10, which is quoted hereunder:
"10. "Infrastructure Project" means roads,
bridges & culverts, railway lines, power plants, electric
substations and transmission lines, coal storage, water
supply and storage facilities undertaken predominantly
for use by industrial units, ports, airports, container
terminals, bonded warehouses, satellite townships
around industrial centers, film cities, film studios,
transport and telecommunication facilities, common
effluent treatment plants, waste management facilities,
tool rooms, R & D Institutes, Technology Laboratories/
Centers, Quality testing labs/centers, exhibition and
conference centers, industrial townships, industrial
estates, amusement parks, Multiplexes, Golf courses
and other tourism-related infrastructure, social and
allied infrastructure such as schools, technical &
professional institutes and hospitals etc."
Further reliance was placed on Clauses-1.6, 9, 9.1, 9.3, 16,
16.3 & 16.6 of the Industrial Policy Resolution, 2007, which are
quoted hereunder:
"1.6 Orissa has also emerged as a national hub for
thermal power with a proposed capacity
installation of over 20,000 MW in the medium
term involving an investment of over Rs.80,000
crore. The State is therefore poised to leverage the
availability of low cost and reliable power to
attract further investments.
9. INFRASTRUCTURE
9.1 The State Government recognizes the need of
providing quality industrial and social
infrastructure for supporting healthy
industrialization as also the need for industry to
follow environment friendly practices to make the
industrialization process sustainable.
9.3 The State Government shall announce a
comprehensive Land Police to address all issues
concerning identification, procurement and
allotment of land for industrial and allied
purposes, including creation of associated social
infrastructure. IDCO along with Revenue
Department shall vigorously implement the land
Bank Scheme, which was announced in the IPR-
2001 to ensure orderly industrial growth. IDCO in
association with DLNAs shall identity suitable
tracts of government land for this purpose, which
shall then be considered by the DLSWCA for
alienation in favour of IDCO. The land premium
shall be paid by IDCO after a moratorium of three
years from the date of alienation. The moratorium
period should be utilized by IDCO for development
of the land for industrial and allied use. In the
event of non-payment of premium within the
stipulated period the land shall be liable for
resumption.
16. LAND
16.3 Infrastructure Projects and project of IDCO for
industrial and infrastructure use shall be
entitled to allotment of Government land at
concessional industrial rate.
16.6 New Industrial units and existing industrial units
taking up
expansion/modernization/diversification will be
granted exemption under the provisions of
clause-C of Section-73 of Orissa Land Reforms
Act, 1960 from payment of premium, leviable
under provisions of clause-C of Section 8(A) of
the OLR Act, 1960 on production of eligibility
certificate from the Director of Industries, Orissa
for Large Industries and Medium enterprises and
G.M./PM, DIC for Micro, Small Enterprises as
follows.
Micro & Small Sector 100% up to 5 Acres
Medium Sector 75% up to 25 Acres
Large Sector 50% up to 500 Acres
Priority Sector 50%
Thrust Sector 100%"
24. Placing reliance on the above and, in particular, that the
State in its Industrial Policy Resolution has declared "power plant", as
"infrastructure project", there can be no doubt whatsoever that setting
up of a power plant sub-serves "public purpose" and clearly the
acquisition of land for an "infrastructure project" i.e. production of
power by KVK cannot but be held to be covered by Section 3(f) of the
Land Acquisition Act. Consequently, acquisition under Part-II of the
Land Acquisition Act cannot be faulted.
The Learned Advocate General further stated that the State
only provides the land for "public purpose" through IDCO and whether
the KVK purchased additional land on its own is not a criteria to be
taken into consideration while challenging the act of acquisition of
land under the Land Acquisition Act.
Submissions of IDCO
25. Mr. Jagannath Patnaik, learned Senior Advocate appearing
for the IDCO confined his argument to the cases under category-I
relating to the validity and legality of the land acquired under the Land
Acquisition Act, 1894. He submitted that the Orissa Industrial
Infrastructure Development Corporation Act, 1980 was set up by the
State of Orissa and is guided by the both Act, 1980 and rules framed
thereunder.
The Corporation was established for development of
Industrial Infrastructure in the State of Orissa. The State of Orissa
entered into an MoU with various companies including KVK and the
State Government directed IDCO to develop the infrastructure for
establishment of industries in the State serving public interest and
more importantly, to support the industries establishing Power Plants
which would be then required to sell part of power production to the
State Government. Since KVK wanted to establish a coal based power
plant in the State of Orissa, the said company applied to the State
Government and the State Government forwarded the application to
the High Level Clearance Committee constituted under Section 3 of the
Orissa Industries (Facilitation) Act, 2004. The said High Level
Industries Clearance Authority cleared the proposal of the company
and directed administrative department to do the needful for
establishment of the power plant. In view of the MoU entered into
between the State and KVK and in view of the fact that certain clauses
of MoU required KVK to supply a portion of the power generated by its
plant to the State. The said terms of the MoU and the State being
requirements of power directed IDCO to take necessary steps in the
matter. Mr. Patnaik placed reliance Section 31 of the IDCO Act, 1980,
which reads as follows:
"31. Acquisition of land: (1) Whenever any
land is required, by the Corporation for any
purpose in furtherance of the objects of this
Act, but the Corporation is unable to acquire it
by agreement, the State government may, upon
an application of the Corporation in that behalf,
order proceedings to be taken under the Land
Acquisition Act, 1894 (1 of 1894) for acquiring
the same on behalf of the Corporation as if such
lands were needed for a public purpose within
the meaning of that Act.
(2) The amount of compensation awarded and
all other charges incurred in the acquisition of
any such land shall be forthwith paid by the
Corporation and thereupon, the land shall vest
in the Corporation."
26. In terms of the aforesaid provisions the IDCO placed a
requisition before the State Government for acquisition of certain
amount of private land under the Land Acquisition Act, 1894 for the
purpose of carrying forward its object, a certain amount of private land
was covered under the notification and necessary notification under
Section 4 and 6 of the L.A. Act was duly issued and the same being
subject matter of challenge in this batch of writ applications. Insofar
as the allegation of "colorable exercise of power" is concerned, Mr.
Patnaik submitted that in the present case after notification under
Section 4 the objections duly considered under Section 5-A hearing
conducted by the Collector and based on such report Section 6-A of
the L.A. Act has been issued. It is submitted that Section 6-A of the
L.A. Act provides for a declaration to be made by the Government that
a particular land is made for a "public purpose" or for a company. It is
for a company then such declaration shall be subject to the provisions
of Part-VII of the Act which provides under the heading "Acquisition of
land for Companies". Thus, Section 6 of L.A. Act makes an apparent
distinction between acquisition of a land for a "public purpose" and
acquisition for a company. He further submitted that there is an
important and crucial second proviso to Section 6 of the L.A. Act which
has a immense bearing on the issues raised by the petitioners on the
question whether the acquisition is for a "public purpose" or for a
company. In this respect, he placed reliance on Section-6 (Second
Proviso) read with Explanation-2, which is quoted hereunder:
"Second Proviso of Section-6.
"............ no such declaration shall be made
unless the compensation to be awarded for such
property is to be paid by a company, or wholly or partly
out of public revenues or some fund controlled or
managed by a local authority."
Explanation 2 to the proviso has made it
clear that where compensation to be awarded is to be
paid out of the funds of a Corporation owned or
controlled by the State, such compensation shall be
deemed to be compensation paid out of public
revenues."
27. Thus payment of compensation wholly or partly out of
public revenues is mandatory for making a declaration to the effect
that the particular land is needed for public purpose. In the present
case declaration has been made under Section 6 that the land is
needed for public purpose.
28. Learned counsel for the IDCO asserts that in the present
case, since the entire compensation amount was paid for by IDCO, it
has to be "deemed" that it is out of "public revenue" and, therefore, the
State issued the necessary declaration, that the particular land was
needed for "public purpose". In the present case, since a declaration
has been made under Section 6, that the land is needed for "public
purpose", no challenge to the same on the purported ground of
"colorable exercise of power" can be entertained.
Insofar as certain advances made by KVK to IDCO is
concerned, it is submitted that the corporation has paid the
administrative charges for the acquisition of land in question and has
also deposited the necessary compensation amount for the said
acquisition. In this respect, reliance was placed by Mr. Patnaik on the
judgment of the Hon'ble Supreme Court in the case of Smt.
Somawanti and others vs. State of Punjab and others, AIR 1963 SC
151, which was quoted with approval in the case of Pratibha Nema vs.
State of Madhya Pradesh, (2003) 10 SCC 626 and the case of
Sooraram Pratap Reddy and others vs. District Collector, Ranga
Reddy District and others, (2008) 9 SCC 552. He submitted that in
the last judgment, the Hon'ble apex Court while interpreting the effect
of Explanation-2 of the Second proviso to Section 6 of the L.A. Act,
once even a part of the compensation amount is paid for acquisition
from the fund of the State Corporation, the acquisition becomes for
"public purpose" and satisfies the definition of Section 3(f) of the Land
Acquisition Act. Therefore, he submits that no contention would
survive that Part-VII and not Part-II of the L.A. Act would be applicable
to the present case. Learned counsel for the IDCO further submitted
that while it is a fact that the KVK has advanced certain money to
IDCO towards advance lease premium, the same was credited to the
account of the Corporation and once such money is from became part
of the corporation's fund, it becomes the public fund and, therefore,
payment for compensation having been paid from out of public fund
satisfying the requirements of Explanation-2 under proviso-II of
Section 6 of the Land Acquisition Act. Mr. Patnaik relies upon Section
14, 15(a) and Section 31 of the OIIDC Act and submits that IDCO is
competent to acquire land for furtherance of the object of the said Act,
which are quoted hereinbelow:
"14. Functions- The functions of the Corporation shall
be.
(i) generally to promote and assist in the rapid
and orderly establishment, growth and
development of industries, trade and
commerce in the State; and
(ii) in particular, and without prejudice to the
generally of Clause (i) to;
(a) establish and manage industrial estates
at places notified by the State
Government,
(b) develop industrial areas notified by the
State Government for the purpose and
make them available for undertakings to
establish themselves,
(c) undertake schemes or works, either
jointly with other corporate bodies or
institutions, or with government or local
authorities, or on an agency basis, in
furtherance of the purposes for which
the Corporation is established and all
matters connected therewith,
(d) provide or cause to be provided
amenities and common facilities in
industrial estates and industrial areas
and construct and maintain or cause to
be maintained works and buildings
thereof,
(e) make available buildings on hire or sale
to industrialists or persons intending to
start industrial undertakings,
(f) construct buildings for the housing of
the employees of such industries and
employees of the Corporation.
15. General Powers of the Corporation- Subject to
the provisions of this Act, the Corporation shall
have power,
(a) to acquire and hold such property, both
movable and immovable as the Corporation may
deem necessary for the performance of any of its
activities, and to lease, sell, exchange or otherwise
transfer any property held by it on such
conditions as may be deemed proper by the
Corporation,
31. Acquisition of land: (1) Whenever any land is
required, by the Corporation for any purpose in
furtherance of the objects of this Act, but the
Corporation is unable to acquire it by agreement,
the State government may, upon an application of
the Corporation in that behalf, order proceedings
to be taken under the Land Acquisition Act, 1894
(1 of 1894) for acquiring the same on behalf of the
Corporation as if such lands were needed for a
public purpose within the meaning of that Act.
(2) The amount of compensation awarded and all
other charges incurred in the acquisition of any
such land shall be forthwith paid by the
Corporation and thereupon, the land shall vest in
the Corporation."
29. Mr. Patnaik laid stress on Section 14 of the OIIDC Act and
submits that Section 4(ii) thereof, in particular, begins with the words
"in particular and without prejudice to the generality of clause (i)".
Therefore, he submits that all the instances cited in Section 14(ii)
ought to be treated as merely illustrative without in any manner
limiting the scope of sub-clause (i). In this respect, he placed reliance
on the judgment of the Hon'ble Supreme Court in the case of S.K.
Singh vs. V.V. Giri, AIR 1970 SC 2097 (Para-39, 41) in particular,
wherein the Hon'ble apex Court came to hold that where such a
phrase is used in Section 14(ii) is concerned, it has been held that the
first part of the section is independent and is no way narrowed down
by the illustrations given in the second part of the said Section.
Therefore, he submits that the IDCO invoked its authority under
Section 31 of the OIIDC Act only after the State Government was duly
satisfied that the Corporation was unable to acquire the land by
agreement and, therefore, it became necessary for to the Corporation
file a requisition for initiating process of land acquisition under the
L.A. Act, 1894. The act of making such a "requisition" itself,
presupposes that the Corporation having failed to acquire the land in
question by agreement has had to resort to seeking acquisition under
the L.A. Act, 1894 and such Act on the part of the Corporation cannot
be held to be illegal or invalid or done in a manner which can be
described to be a "colorable exercise of power". He further submitted
that apart from the action of the IDCO under its statutory power, the
State Government issued Notification under Section 4 of the Land
Acquisition Act, which once again declares that the land in question is
required for establishment of industrial area by IDCO and, therefore,
there was no necessity of issuing any second notification notifying an
industrial area. In conclusion, it is submitted that the land in
question was acquired by IDCO under the Land Acquisition Act, 1894
for "public purpose" for leasing the same to KVK for setting up of a
thermal power plant, which is declared to be an "infrastructure
project" under the IPR, 2007 and in terms of the MoU entered into
between the State and the KVK, the benefits of the plant would enure
to the benefit of the people of the State which is being starved of power
and consequently no allegation of "lack of public purpose" ought to be
entertained. He submits that the land in question has been leased in
favour of the KVK on various terms and conditions stipulates in the
lease agreement and no permanent interest for the land acquired has
been transferred in favour of KVK and in the event of any violation of
the terms of lease, it remains open to the IDCO to revoke the lease for
breach of any terms and conditions. Consequently, it cannot be said
that there has ever been any transfer of interest in the land in favour
of the KVK, apart from what is contained in the lease deed and the title
of such land continues to be vested in the State.
Submissions of KVK
30. Mr. Pinaki Mishra, learned Senior Advocate appearing for the
KVK submits that the contentions of the petitioners pertaining to the
alleged illegalities committed in acquiring the land under the L.A. Act
are wholly, misconceived and baseless both in fact and law. It is
submitted on behalf of the KVK that, the acquisition in the present
case is clearly covered under Section 3(f)(iv) and Part-II of the L.A. Act.
In terms of the notification issued under Sections 4 and 6 of the L.A.
Act, the acquisition of land by the State Government is for IDCO, for
setting up industry for public interest at the expense of Government.
Such acquisition of land is squarely covered by the definition of "public
purpose" under Section 3(f)(iv), Part-II of the L.A. Act namely the
provisions of land for a corporation owned or controlled by the State
Government.
The acquisition would result in vesting the acquired land
with the Government and Government will become the owner of the
land and will give the same to IDCO on long term lease. In fact, the
Govt. has already given possession of part of the acquired land to
IDCO. IDCO in turn will sub-lease the land to the KVK for the
purpose of setting up the Thermal Power Plant for a fixed tenure on
payment of rent and premium, with onerous conditions including
covenants for forfeiture.
It is submitted that the definition of "public purpose"
u/s3(1)(f) of the LA Act is an "inclusive" one and has been given a
very wide and broad meaning by the Hon'ble Supreme Court in
various judgments. Therefore, the present acquisition, would be, in
any event, covered under the definition of "public purpose" and would
therefore fall under Part II of the LA Act.
It was further submitted that the land was required for
setting up a 1200 MW Thermal Power Project by the KVK.
Undisputedly, "Power Plant" is an "Infrastructure Activity", covered
under the Industrial Policy Resolution issued by the State
Government and is therefore, for the benefit of the people of the
State.
The KVK has executed a Memorandum of Understanding
("MOU") dated 26.09.2007 (which is being renewed/extended
annually) under which the Government has undertaken to provide
land to the KVK.
Additionally the MOU dated 26.9.2006 in Clause (i)
stipulates that 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. The KVK has executed a Power Purchase Agreement with Grid
Corporation of Orissa, dated 26.09.2006, for supplying 25% power.
The KVK has executed a Power Purchase Agreement with Grid
Corporation of Orissa, dated 26.9.2006, for supplying 25% of power
to be generated from the project at vastly concessional rates.
The MOU also stipulates that in the maters of employment
preference will be given to people of Odisha and local people and the
KVK will make efforts for improving the skill levels of such persons.
This activity is being scrupulously pursued by the KVK.
The power project would generate numerous direct and
indirect employment opportunities for the people of the State and is
in the larger interest of the people and economy of the state.
In view of the above, it is asserted that setting up of the
present power plant is for a public purpose and is clearly covered by
the broad definition of "public purpose" under Section 3(I)(f) of the LA
Act.
The KVK relies on the following judgments:-
(i) Pratibha Nema and Ors. Vs. State of MP - (2003) 10 SCC 626-
Paras 31-33- List of judgments given by the Ld. AG) Establishment
of Diamond Park by private parties was held to be public purpose.
(ii) Sooraram Pratap Reddy Vs. District Collector, Ranga Reddy
District (2008) 9 SCC 552 - Paras 119, 133, 129 and 134 List of
judgments given by the Ld. AG - Establishment of Software Park
by private parties was held to be public purpose.
(iii) Nand Kishore Gupta and Ors. Vs. State of Uttar Pradesh
and Ors. - (2010) 10 SCC 282- Paras 56-58 - List of judgments
given by the Ld. AG - Establishment of expressway by private
establishment was held to be public purpose.
31. Insofar as the Involvement of KVK in the process of
acquisition is concerned, it is submitted that for setting up a power
plant of this magnitude (1200 MW) with an investment of Rs.4,990
crores, it is imperative that the location of land is suitable in the
sense of important parameters such as rail and road connectivity,
access to water, power evacuation facilities etc., which the KVK is
always in the best position to ascertain. That, however, does not
mean that the acquisition will lose its "public purpose" character.
32. The further fact that the name of KVK is mentioned in
notices u/s.5-A of the LA Act is not a determinative factor, when
otherwise the facts of the present case, clearly establish that the
acquisition is under Part II of the Act. It is pertinent to mention that
neither in Section 4 nor in Section 6 Notification the name of the
KVK is mentioned.
33. Insofar as the allegation of "colorable exercise of power" by
the State Government is concerned, the Hon'ble Supreme Court in
various judgments including in Somawanti Vs. State of Punjab -
AIR 1963 SC 151 (quoted in Para 12 of Pratibha Nema case (supra)
has held that conclusiveness of Section 6 declaration is open to
challenge only on the ground of colourable exercise of power. It
is also settled law that in order to allege and establish malafides and
colourable exercise of power by the Govt. the burden is heavy on the
petitioners. In the present case, apart from merely using the
expression "colourable exercise of power", the petitioners have failed
to make out any case.
The Hon'ble Supreme Court has further held in Para 119 of
Sooraram Pratap Reddy's case that "In our judgment, in
deciding whether the acquisition is for "public purpose" or not,
prima facie, the Government is the best judge. Normally, in such
matters, writ court will not interfere by substituting its
judgment for the judgment of the Government."
34. Insofar as the payment of Compensation, it is stated that
the MoU executed between the KVK and State Government under
Clause 5.A(iv) provides that the KVK agrees to pay cost of the land to
IDCO in case the land is acquired for the purpose. In the present
case, admittedly, no payments have been made by the KVK to LAO.
All payments have been made by the KVK to IDCO and it is IDCO
which has made payment of compensation for acquired land to the
LAO. It is important to note that under Section 20 of the IDCO Act,
IDCO maintains a statutory fund. Once the amounts/monies are
paid by the KVK to IDCO, the said amounts/monies merged into the
funds of IDCO and lost their character.
Reliance is placed on the judgment of the Hon'ble Supreme
Court in Pratibha Nema case (supra), held that "The genesis of
the fund is not the determinative factor, but its ownership in
prasenti that matters.". Applying this principle laid down by the
Hon'ble Supreme Court to the facts of the present case, the monies
once deposited in the account of IDCO by the KVK, belonged to IDCO
and any payments made by IDCO to LAO would be out of public
funds thereby complying with second proviso to Section 6 of the LA
Act and the ratio laid down by the Hon'ble Supreme Court in
Pratibha Nema's case.
35. In view of the contentions raised before us as noted
hereinabove, the following issues arise for consideration:
(i) Whether the notification U/s.6 of the Land Acquisition
Act dated 21.07.2009 (published in the Orissa Gazette
on 30th July, 2009) is in-operative having been passed
allegedly beyond one year from the date of issue of
notification under Section 4(1) of the Land Acquisition
Act, 1894?
(ii) Whether the Collector conducted the hearing under
Section 5-A of the Land Acquisition Act, had failed in
his duty by not assigning detailed reasons for each
individual case/objector and as a consequence of
which such report has resulted in violating the rights
of the petitioner and prevented the State from
applying its independent mind to the acquisition
proceeding?
(iii) Whether the acquisition of land in the present case
ought to have been taken place under Part-VII of Land
Acquisition Act and not Part-II and consequently
amounts to a "colourable exercise of power" by the
State for the benefit of a private party.
36. Insofar as the first issue is concerned, it is clear from the
statement provided by the State as quoted in para-20 above that the
notification under Section 4(1) though dated 11.07.2008 were also
published in the local newspapers on 28.07.2008 as well as
04.08.2008 and further that the declaration under Section 6(1) of the
L.A. Act were duly published on 21.07.2009 and 23.04.2009 all
within the period of one year from the date of issue of the
notifications under Section 4(1) of the L.A. Act. Consequently, the
allegation of the petitioner regarding delay in publication of 6(1)
notification is factually incorrect and misplaced and consequently,
stands rejected.
37. Insofar as the second issue is concerned, this Court had
called upon the State to produce all records for the purpose of
verification by the Court. On perusal of the records produced before
this Court, we find that the objections were received to Section 4(1)
notification from a total of 62 individuals, whose names and relevant
details are quoted hereunder in four groups.
(A) COMPENSATION RECEIVED
Sl. Name W.P.(C) No. Village LA Case Objection Presence Time Whether Whether
No. No. after 4(1) during petition 5-A compensation
notice 5-A during objection received
hearing 5-A similar/
hearing identical
1. Sarat Dehury No Case No.
5. Surendra 15988/2011 Kandarei 7/08 Filed Not
Muduli present
13. Chatrubhuja 9326/2009 Kandarei 7/08 Filed Present Filed
Behera 15042/2009
24. Alekh Naik No Case No.
28. Mathuri Naik 9326/2009 Khanduali 8/08 Filed Present
29. Anadi Naik 15988/2011 Khanduali 8/08 Filed Present Filed
15042/2009
9326/2009
31. Narayan 15988/2011 Khanduali 8/08 Filed Present Filed
Sahoo 15042/2009
9326/2009
33. Madhab No Case No.
Chandra
Dehury
34. Sauri Dehury 15988/2011 Khanduali 8/08 Filed Present Filed
15042/2009
35. Bira Dehury 15988/2011 Khanduali 8/08 Filed Present Filed
15042/2009
40. Bibasta 9326/2009 Rahangola 9/08 Filed Present Filed
Pradhan 15042/2009
41. Basanta 9326/2009 Rahangola 9/08 Filed Present Filed
Pradhan 15042/2009
42. Suguri 9326/2009 Rahangola 9/08 Filed Present Filed
Pradhan 15088/2011
15042/2009
45. Bauri Dehury 9326/2009 Rahangola 9/08 Filed Present Filed
15988/2011
47. Jogi Dehuri 9326/2009 Rahangola 9/08 Filed Present Filed
15042/2009
22838/2011
15988/2011
48. Pravati Bewa 9326/2009 Rahangola 9/08 Filed Present Filed
15042/2009
49. Rabi Dehuri 9326/2009 Rahangola 9/08 Filed Present Not
filed
52. Hrishi Behera 9326/2009 Rahangola 9/08 Filed Present Filed
15042/2009
53. Arta Behera 9326/2009 Rahangola 9/08 Filed Not Filed
15042/2009 present
57. Gandharba 9326/2009 Dalua 10/08 Filed Present Filed
Naik 15042/2009
58. Sibaram 9326/2009 Dalua 10/08 Filed Present Filed
Sahoo 15042/2009
(B) PRIVATE SALE
Sl. Name W.P.(C) No. Village LA Case Objection Presence Time Whether Whether
No. No. after 4(1) during petition 5-A compensation
notice 5-A during objection received
hearing 5-A similar/
hearing identical
03. Nilamani 9326/2009 Kandarei 7/08 Filed Present Filed
Subudhi 15988/2011
08. Bilasuni 9326/2009 Kandarei 7/08 Filed Not Not
Mohapatra present filed
19. Golakh Dehuri 15042/2009 Khanduali 8/08 Present
9326/2009
23. Sikara Dehuri No Case No.
26. Bauri Pradhan 9326/2009 Khanduali 8/08 Present Not
filed
43. Gobinda 9326/2009 Rahangola 9/08 Filed Present Filed
Behera 15042/2009
46. Raghunath No Case No.
Rana
55. Kuma Bewa No Case No.
56. Bilash Nayak 9326/2009 Dalua 10/08 Filed Present Filed
15042/2009
60. Kanduri Roul No Case No.
62. Golekhabihari No Case No.
Mohanty
(C) NOT LAND LOSER
Sl. Name W.P.(C) No. Village LA Objection Presence Time Whether Whether
No. Case after 4(1) during petition 5-A compensation
No. notice 5-A during objection received
hearing 5-A similar/
hearing identical
14. Kirtan 15988/2011 Khanduali 8/08 Filed Present Filed
Naik 15042/2009
9326/2009
16. Panu 15988/2011 Khanduali 8/08 Filed Son Filed
Sahu 15042/2009 present
9326/2009
17. Manguli No Case No.
Dehury
18. Kailash 15042/2009 Khanduali 8/08 Filed Present Filed
Dehury 9326/2009
20. Dijabara 9326/2009 Khanduali 8/08 Filed Present Filed
Naik
21. Gundicha 9326/2009 Khanduali 8/08 Filed Not Not filed
Dehury present
22. Kiran 15042/2009 Khanduali 8/08 Filed Present Filed
Naik 9326/2009
25. Sarat Naik 9326/2009 Khanduali 8/08 Filed Not Not filed
present
54. Basu No Case No.
Behera
59. Fagu Naik 15042/2009 Dalua 10/08 Filed Present Filed
9326/2009
(D) OTHER CATEGORY
Sl. Name W.P.(C) No. Village LA Objection Presence Time Whether Whether
No. Case after 4(1) during petition 5-A compensation
No. notice 5-A during objection received
hearing 5-A similar/
hearing identical
02. Ramesh 30882/2011 Kandarei 7/08 Filed Present Filed Yes No
Chandra 22636/2011
Mohapatra 15042/2009
9326/2009
15968/2011
04. Padmabati 30882/2011 Kandarei 7/08 Filed Son Filed Yes No
Bewa 9326/2009 -Nakula
Muduli
present
06. Ashok 9326/2009 Kandarei 7/08 Filed Present Filed Yes No
Mohapatra 15042/2009
07. Pramesh 30882/2011 Kandarei 7/08 Filed Present Filed Yes No
Mohapatra 9326/2009
15042/2009
15988/2011
09. Budhi 30882/2011 Kandarei 7/08 Filed Son Filed Yes No
Bewa 9326/2009 -Prasant
Ku.
Sahoo
present
10. Narendra 22838/2011 Kandarei 7/08 Filed Present Filed Yes No
Mohapatra 30882/2011
9326/2009
11. Chatubhuj 9326/2009 Kandarei 7/08 Not No
a 27845/2011 present
Mohapatra
12. Kishori No Case No. No
Dehuri
15. Ashok 30882/2011 Khanduali 8/08 Filed Present Filed Yes No
Kumar Das
27. Usha Das 15042/2009 Khanduali 8/08 Filed Son- Filed Yes No
9326/2009 Ashok
30882/2011 Das
present
30. Suresh 15988/2011 Khanduali 8/08 Filed Present Filed Yes No
Patra 15042/2009
9326/2009
27845/2011
32. Jaladhar No Case No.
Dehuri
36. Ramesh 15042/2009 Rahangola 9/08 Filed Present Filed Yes Ghana Behera
Behera 9326/2009 recorded tenant
Khata No.78/24 &
37. Prafulla 15042/2009 Rahangola 9/08 Filed Present Filed Yes Doli Behera
Behera Recorded tenant
Khata No.17
38. Ghana 9326/2009 Rahangola 9/08 Present
Behera 15042/2009
22838/2011
39. Narana 9326/2009 Rahangola 9/08 Filed Present Filed Yes
Behera 15042/2009
22838/2011
44. Sanatan 9326/2009 Rahangola 9/08 Filed Present Filed Yes Not received
Behera 15042/2009
22838/2011
50. Hemanta 9326/2009 Rahangola 9/08 Not filed Present Filed Dolagobinda Rana
Kumar 15042/2009 Recorded tenant
Rana
51. Damodar 17476/2009 Rahangola 9/08 Filed Present Not Not Not received
Chaini filed similar
61. Pradipa 27845/2011
Kumar
Sahoo
The Collector after issue of section 4(1) notification issued
notices to all land losers or affected parties to file their objections
and also issue notices for personal hearing. The following so many
number of persons i.e. 21 persons amongst them have received their
compensation, a further 11 persons have effected private sale of their
land to KVK and ten persons who have filed objections have no
connection with the acquisition since they are not land losers and
the balance 20 persons named in the "Other Category" are the only
persons, who have not collected their compensation from the Land
Acquisition Officer and are effectively the persons who challenge the
L.A. proceeding in the present batch of petitions.
38. Insofar as the persons who have been named in the "Not
Land Loser group" or "Private Sale group", writ petition on their
behalf obviously are infructuous since such persons either have not
lost any land or have made private sale of their land to the KVK.
Insofar as the persons grouped under the "Compensation Received"
having received their compensation, may at best be aggrieved by the
quantum of compensation awarded and consequently are at liberty
to seek enhancement of compensation before the appropriate forum
if they feel aggrieved by the quantum determined.
Insofar as the persons grouped under "Other category" are
concerned, 18 of them have filed cyclostyled objections. Except one
Damodar Chaini, petitioner in W.P.(C) No.17476 of 2009, has filed a
detailed objection and participated at the hearing. The others though
present at the time of hearing sought for adjournment of the hearing.
39. In the light of the aforesaid facts, it become necessary to
take note of the report of the Collector on conclusion of 5-A hearing
has clearly categorized the nature of the objections raised by the
objectors in the following manner:
1) Lands in the area are fertile.
2) Petitioners have no occupation other than agriculture.
3) The compensation amount decided in L.A. proceeding
being inadequate, higher compensation may be paid.
4) They will become land less, if acquisition of their land
is made.
5) As their lands are to be acquitted, they are to be
declared as displaced.
6) Adequate rehabilitation and employment be provided
to land owners affected by land acquisition.
On considering all the objections raised, the Collector came
to conclude that the identical objections had been raised and
consequently submitted a common report on conclusion of the
proceeding under Section 5-A of the Land Acquisition Act. The
Collector also took into account the fact that the State having
prepared R & R. Policy, all the issues raised related to compensation,
displacement, rehabilitation and employment which would
necessarily be taken care by the R & R policy. In the said proceeding,
it appears that the entire hearing was recorded in the form of
videographics and the C.D. of such proceedings were also attached to
its report.
At this point, it become necessary to take note of the
contention advanced on behalf of Damodar Chaini in W.P.(C)
No.17476 of 2009. On perusing the averments made therein and
after hearing Mr. S.K. Das, learned Senior Advocate appearing for
Damodar Chaini, we observe that the said petitioner has highlighted
the efforts made by him to develop the land and to make the land fit
for agricultural operation and he has highlighted the tremendous
efforts both physical as well financial investments made by him on
his land. The petitioner also stated that he had settled in the said
land with his wife after retiring from Government service and had
also became extremely attached to the land since he was developing
it post retirement. While there can be no doubt that when land is
acquired every persons who loss his/her land is emotionally
disturbed and the relationship between the occupier of the land with
the land is extremely intense and personal. Yet such issues and
sentiments are not matters which can be taken into consideration by
the Collector at a hearing under Section 5-A of the Land Acquisition
Act. Section 5-A of the Land Acquisition Act is quoted hereunder.
"5-A. Hearing of objections-(1)Any persons
interested in any land which has been notified under
Section 4, sub-section(1), as being needed or likely to
be needed for a public purpose or for a Company may,
(within thirty days from the date of the publication of
the notification), object to the acquisition of the land or
of any land in the locality, as the case may be.
(2) Every objection under sub-section(1) shall be
made to the Collector in writing, and the Collector shall
give the objector an opportunity of being heard (in
person or by any person authorised by him in this
behalf) or by pleader and shall, after hearing all such
objections and after making such further inquiry, if
any, as he thinks necessary, (either make a report in
respect of the land which has been notified under
Section 4, sub-section(1), or make different reports in
respect of different parcels of such land, to the
appropriate Government, containing his
recommendations on the objections, together with the
record of the proceedings held by him, for the decision
of that Government). The decision of the (appropriate
Government) on the objections shall be final.
(3) For the purpose of this section, a person shall
be deemed to be interest in land who would be entitled
to claim an interest in compensation if the land were
acquired under this Act.
40. Insofar as the nature of the objections are concerned in all
the cases, including the case of Damodar Chaini as noted
hereinabove, their objections not only covered by the R & R policy of
the State but the issues will have to be taken into consideration by
the Land Acquisition Officer while determining the quantum of
compensation as mandated under Section 23 of the Land Acquisition
Act, 1984. For the purpose of convenience Section 23 is extracted
herein below.
"23. Matters to be considered in determining
compensation- (1) In determining the amount of
compensation to be awarded for land acquired under
this Act, the Court shall take into consideration-
First- the market-value of the land at the date of
the publication of the (notification under Section 4,
sub-section(1);
Secondly, the damage sustained by the person
interested, by reason of the taking of any standing
crops or trees which may be on the land at the time of
the Collector's taking possession thereof;
Thirdly, the damage (if any) sustained by the
person interested, at the time of the Collector's taking
possession of the land, by reason of severing such land
from his other land;
Fourthly, the damage (if any) sustained by the
person interested, at the time of the Collector's taking
possession of the land, by reason of the acquisition
injuriously affecting his other property, movable or
immovable, in any other manner, or his earning;
Fifthly, if, in consequence of the acquisition of
the land by the Collector, the person interested is
compelled to change his residence or place of business,
the reasonable expenses (if any) incidental to such
change; and
Sixthly, the damage (if any) bona fide resulting
from diminution of the profits of the land between the
time of the publication of the declaration under Section
6 and the time of the Collector's taking possession of
the land.
(1-A) In addition to the market-value of the land,
as above provided, the Court shall in every case award
an amount calculated at the rate of twelve per centum
per annum on such market-value for the period
commencing on and from the date of the publication of
the notification under Section 4, sub-section91), in
respect of such land to the date of the award of the
Collector or the date of taking possession of the land,
whichever is earlier.
Explanation-In computing the period referred to
in this sub-section, any period or periods during which
the proceedings for the acquisition of the land were
held up on account of any stay or injunction by the
order of any court shall be excluded.
(2) In addition to the market-value of the land,
as above provided, the Court shall in every case award
a sum of )thirty per centum) on such market-value, in
consideration of the compulsory nature of the
acquisition."
After taking the objections into account as well as the
grievances of the objectors in general, we are of the considered view
that such objections and/or claims are matters which will have to be
considered by the Land Acquisition Officer in course of determination
of compensation and each and every aspect of any individuals
objection is clearly covered by section 23 of the Land Acquisition Act
and, therefore, we find no justifiable basis for entertaining such
objections on the ground as pleaded.
41. On the issue of "colourable exercise of power" and
applicability of Part-II or Part-VII of the L.A. Act is concerned, the
petitioners have laid stress the fact that Section 3(f) where the term
"Public Purpose" have been defined came to amend in the year 1984.
42. Whereas the judgment relied upon by the petitioners which
is noted in para-12 hereinabove is now required to be dealt with:
Insofar as Girnar Traders(3) v. State of Maharashtra,
(2011)3 SCC 1 is concerned , the said judgment of the Hon'ble
Supreme Court has dealt with the issue as to whether the
Maharashtra Regional and Town Planning Act, 1966 ( in short 'MRTP
Act') is a "self-contained code" or not and further, as to the
applicability of provisions of the Land Acquisition Act, 1894 relating
to the extent of acquisition of land, payment of compensation and
recourse of legal remedies provided in the said Act were read into an
acquisition controlled by the provision of MRPP Act. Consequently,
the aforesaid judgment cited by the petitioners is of no assistance for
adjudication of the issues raised in the present case.
In the case of Dev Sharan & others v. State of U.P. &
others, (2011) 4 SCC 769 the Hon'ble Supreme Court held that the
acquisition of land for setting up of jail is certainly a "public purpose"
as defined under Section 3(f) and 5-A of the Land Acquisition Act,
1894. However, the said case was the case where the special powers
in case of urgency under Section 17(4) had been resorted to and the
Hon'ble Supreme Court came to hold that on the facts of the case
that such acquisition ought not to have been made by invoking
Section 17 of the Act. In the present case, Section 17 of the Act and
powers therein have not been invoked and consequently, the said
judgment cited by the petitioners is not of any assistance for
adjudicating the issues raised herein.
In the case of Radhy Shyam (Dead) through legal heirs &
others v. State of U.P. & others, (2011) 5 SCC 553 is concerned, it
involves a case where the authority had invoked the urgency clause
and dispensed with an enquiry under Section 5-A as noted
hereinabove, the urgency clause has not been utilized in the present
fact situation of this case. Hence, the aforesaid decision is not of
much assistance to the present case.
In the case of Tukaram Kana Joshi and others v.
Hamahashtra Industrial Development Corporation and others,
(2013) 1 SCC 353 is concerned, the Hon'ble Supreme Court came to
hold that even after the right to property ceased to be a fundamental
right, taking possession of or acquiring property of a citizen can take
place only in accordance with "law" as per mandate of Article 300-A
i.e. such deprivation can only be resorted to by complying with the
procedure prescribed by a statute and the same cannot be done by
way of executive fiat or order or administrative caprice and directed
the respondent-authority to notify the appellants land under Section
4-A of the L.A. Act within four weeks of the order and issue Section 6
declaration within one week thereafter. Section 9 notice was also
directed to serve within four weeks after publication of Section 6
declaration and award be made within a period of three months
thereafter. In the fact situation of the present case, the issues raised
in the present writ application do not attract the issues dealt with by
the Hon'ble Supreme Court in the said judgment and consequently,
the said judgment is of no assistance in deciding the issues raised
herein.
In the case of B. Anjanappa and others v. Vyalikaval
House Building Cooperative Society Limited and others, (2012)
10 SCC 184 is concerned, the Hon'ble Supreme Court came to hold
that the approval accorded by the State Government for acquisition
of land and the directions to the Deputy Commissioner to issue
Section 4(1) notification is held to be bad in law. In the absence of
any scheme framed by the respondent and securing of approval from
State Government, the directions issued to the Deputy Commissioner
to issue Section 4(1) notification could not be treated as State
Government's approval of housing scheme. Further Hon'ble Supreme
Court held that the direction issued by the Single Judge of the High
Court for issuance of declaration under Section 6(1) was wholly
unwarranted, since the direction given by the Single Judge of the
High Court had been rendered infructuous, inasmuch as, time
within which declaration under Section 6(1) could be issued had
expired. In view of the aforesaid fact situation, the aforesaid
judgment is not of much assistance to this Court in deciding the
present lis.
In the case of Rajiv Pujari v. State of Orissa & others,
2010 (II) ILR Cuttack 1008 is concerned, the petitioner had sought to
challenge the acquisition of land under the L.A. Act, 1894 for the
purpose of establishment of an University, in paragraph-42 of the
judgment, the High Court in the Bench headed by Hon'ble the Chief
Justice V. Gopala Gowda (as he the then was) came to hold that the
issuance of Section 4(1) notification in favour of the beneficiary
company was made on the basis of the requisition made by Vedanta
Foundation but not Anil Agarwal Foundation, which is the
beneficiary company. Thereafter, held that the initiation of the
proceedings by issuance of notifications under Section 4(1) of the
L.A. Act had been made for the establishment of Vedanta University
which was not in existence either under the State University Act or
the U.G.C. Act at the time when the proposed acquisition of lands
was made by issuing preliminary notifications which was held to be
bad in law. The facts of the present case are distinct and no
similarity to the case as referred to.
However, in the said judgment this Court on perusing the
records produced by the State Government reached at a conclusion
that "from the perusal of the records produced by the State
Government, it appears that except in respect of four land owners,
the political executive passed order overruling the objections in
respect of three and in respect of one person accepting the same. The
files do not disclose that the political executive has applied its mind
and granted approval as required under Section 6 declaration
notification declaring the proposed lands in favour of the beneficiary
company for establishment of the University".
In the case of Kamal Trading Private Limited v. State of
West Bengal and others, (2012) 2 SCC 25, Hon'ble Supreme Court
dealt with the rights vested in the land losers under Section 5-A of
the L.A. Act and held as follows: (Para-18,19,20,22 & 28)
"18. In Munshi Singh v. Union of India , this Court
while dealing with Section 5A of the LA Act observed as under
:
"7. Section 5-A embodies a very
just and wholesome principle that a person
whose property is being or is intended to be
acquired should have a proper and reasonable
opportunity of persuading the authorities
concerned that acquisition of the property
belonging to that person should not be
made. ... The legislature has, therefore, made
complete provisions for the persons interested
to file objections against the proposed
acquisition and for the disposal of their
objections. It is only in cases of urgency that
special powers have been conferred on the
appropriate Government to dispense with the
provisions of Section 5-A."
19. In Om Prakash v. State of Uttar Pradesh,
referring to its earlier judgment in State of Punjab v. Gurdial
Singh, this Court raised the right under Section 5A of the LA
Act to the level of fundamental right and observed that: (Om
Prakash case, SCC pp.23-24, para-21)
"21....inquiry under Section 5A is not
merely statutory but also has a flavour of
fundamental rights under Articles 14 and 19
of the Constitution though right to property
has now no longer remained a fundamental
right, at least, observation regarding Article 14
vis-a-vis Section 5A of the LA Act would
remain apposite.
20. In Mukesh Hans this Court reiterated that:
"36. ... right of representation and
hearing contemplated under Section 5-A of the
Act is a very valuable right of a person whose
property is sought to be acquired and he
should have appropriate and reasonable
opportunity of persuading the authorities
concerned that the acquisition of the property
belonging to that person should not be made."
22. In Hindustan Petroleum Corporation, this
Court again referred to Om Prakash and observed that it is
trite that hearing given to a person must be an effective one
and not a mere formality. This Court observed that:
(Hindustan Petroleum Corpn. Case, SCC p.635, para 9)
"9.....Formation of opinion as regards
the public purpose as also suitability thereof
must be preceded by application of mind as
regards consideration of relevant factors and
rejection of irrelevant ones."
This Court further observed that the State in its
decision-making process must not commit any misdirection
in law. This Court observed that it cannot be disputed that
"Section 5A of the LA Act confers a
valuable important right and having regard to
the provisions contained in Article 300- A of
the Constitution, it has been held to be akin to
a fundamental right." (Hindustan Petroleum
Corporation case, SCC p.635, para-9)
Pertinently, this Court made it clear that in a case
where there has been total non-compliance or substantial
non-compliance with the provisions of Section 5A of the LA
Act, the Court cannot fold its hands and refuse to grant relief
to the appellant. Again in Dev Saran, this Court reiterated the
same view."
28. By no stretch of imagination, it can
be said that the Second Land Acquisition
Officer had applied his mind to the objections
raised by the appellant. The above-quoted
paragraphs are bereft of any
recommendations. The Second Land
Acquisition Officer has only reproduced the
contentions of the officers of the Acquiring
Body. The objections taken by the appellants
are rejected on a very vague ground. Mere use
of the words `for the greater interest of public'
does not lend the report the character of a
report made after application of mind. Though
in our opinion, the declaration under Section 6
of the LA Act must be set aside because the
appellant was not given hearing as
contemplated under Section 5A(2) of the LA
Act, which is the appellant's substantive right,
we must record that in the facts of this case,
we are totally dissatisfied with the report
submitted by the Second Land Acquisition
Officer. His report is utterly laconic and bereft
of any recommendations. He was not expected
to write a detailed report but, his report,
however brief, should have reflected
application of mind. Needless to say that as to
which report made under Section 5A(2) could
be said to be a report disclosing application of
mind will depend on the facts and
circumstances of each case."
In the light of the reliance placed by the petitioners
essentially on two judgments, namely, Kamal Trading (supra) and
Rajiv Pujari (supra), the learned counsels for the opposite parties do
not raise any objections to the principles enunciated in the aforesaid
judgments. On the contrary, they also assert that in the fact
situation of the present case all procedural requirements which are
meant for safeguarding the interest of the possible land losers have
been duly complied with and, therefore, the aforesaid judgments
would have no application to the fact situation of the present case.
On perusal of the documents produced by the State and the
objections filed by the petitioners, we find that all the objections have
been cyclostyled and are identified in nature except the objection of
Damodar Chaini (petitioner in W.P.(C) No.17476 of 2009). Out of 62
objectors, 40 persons have also participated at the hearing and the
report of the Collector has duly considered and categorized the
specific points of objections raised. So unlike the case of Rajiv Pujari
(supra) where the records of the State indicated otherwise, in the
case at hand, we find to the contrary. In other words, substantial
number of land losers participated in the hearing which was also
videograph by the Collector. All objections as well as the C.D. of the
video was sent to the State. The State thereafter based on an earlier
direction of this Court in W.P.(C) No.16822 of 2008, directed the
R.D.C. to carry out a "socio-economic survey". The report of which
has been quoted hereinabove in para-7 and only thereafter directed
publication of a notice under Section 6(1) of the L.A. Act.
Whereas the judgments relied upon by the petitioners which
is noted in para-15 hereinabove is now required to be dealt with:
Insofar as the judgment of the Hon'ble Supreme Court in the
case of Greater Noida Industrial Development Authority vs.
Devendra Kumar and Others, (2011) 12 Supreme Court Cases 375
is concerned, the Hon'ble Supreme Court came to conclude that the
entire exercise of acquisition was designed to serve the interest of
builders and the veil of "public purpose" was used to mislead people
into believing that the land was being acquired for a "public
purpose". In the said case the Hon'ble Supreme Court took note of
the fact that the authorities had invoked the urgency clause under
Section 17(1) and had dispensed with the enquiry under Section 5-A
and came to hold that in the fact situation of the said case, there was
no justification for invoking such urgency clause nor dispensing with
Section 5-A hearing. In the present case at hand, neither the urgency
clause under Section 17(1) has been resorted to nor has 5-A hearing
been dispensed with.
In the present case, we are of the considered view that the
State Government, IDCO as well as the Project proponent had acted
clearly in consonance with the Industrial Policy Resolution of the
State Government, provisions of the OIIDC Act and Rules as well as
the mandatory requirements of the L.A. Act, 1894 and consequently,
we are of the further considered view that the facts of the present
case are clearly distinguishable from the judgment relied upon by the
petitioner hereinabove.
Insofar as the case of Royal Orchid Hotels Limited and
Another vs. G.Jayarama Reddy and Others, (2011) 10 Supreme
Court Cases 608 is concerned, the Hon'ble Supreme Court held that
an acquisition of land under the L.A. Act, in conclusion of which the
land acquired, was alienated to a private party after 12 years of
acquisition and consequently, the Hon'ble Supreme Court came to
hold that, if the land is to be acquired for a company, the State
Government and the company are bound to comply with the
mandate of the provisions of part-VII of the L.A. Act. In the case at
hand, the acquisition has been made by the State Government for
IDCO i.e. a State undertaking created under the State statute, who
in turn, have leased the land in favour of the project proponent-KVK
for setting up of a "power plant" which in the Industrial Policy
Resolution of the State has been declared to be an "infrastructure
project" and all infrastructure projects have been held and declared
by the State to sub-serve "public purpose". Consequently, the
judgment relied upon by the petitioner as noted hereinabove is
distinct on fact from the present case.
Insofar as the case of Devinder Singh and Others vs. State
of Punjab and Others, (2008) 1 Supreme Court Cases 728 is
concerned, on the fact situation that arose in the said case, it
appears that M/s International Tractors Limited had made an
application which is a company incorporated under the Companies
Act, 1956 intended to set up a project named "Ganesha Project" for
which it requested the State to acquire lands under the Land
Acquisition Act, 1894. A notification under Section 4 was issued and
in the case at hand it was found by the Hon'ble Supreme Court that
the said acquisition could not have proceeded under part-II of the
L.A. Act but ought to have proceeded under part-VII. In the said
judgment, although it was contended on behalf of the project
proponent that once a declaration that the land has been acquired
for "public purpose" is made, the same is conclusive yet, the Hon'ble
Supreme Court came to hold that when such an order is passed
without jurisdiction, the same amounts to a "colourable exercise of
power.". In the present case, Sections 4 & 6(1) notifications clearly
indicates that the land is being acquired for and on behalf of IDCO
and in this case Their Lordships affirmed the views expressed by the
Hon'ble Supreme Court in the case of Pratibha Nema (supra) and
upheld the view that the point of distinction between the acquisition
of land under part-II and part-VII, would be the source of funds to
cover the cost of the acquisition and further held that the 2nd proviso
to Section 6(1) is the main dividing line for the two types of
acquisition.
In the present case, as we have held hereinabove, it is IDCO,
the Government Corporation which paid the money for the
acquisition to the L.A.O while the project proponent had, in fact, paid
money to IDCO and once the payment made by the KVK-project
proponent to IDCO, the said amounts merges with the funds of IDCO
and any payment made by IDCO therefrom has to be held to be made
from out of "public fund" and consequently, this distinction which
had been laid down by the Hon'ble Supreme Court in the case of
Pratibha Nema (supra) has been upheld by the Hon'ble Supreme
Court in the case of Devinder Singh (supra) and, therefore, we find
no hesitation in holding that the fact situation of the present case is
distinct from that which arose for consideration in the case of
Devinder Singh (supra).
Reliance was also placed by the petitioner in the cases of
State of Tamil Nadu v. K.Shyam Sunder,(2011)8SCC 737; Coal
India v. Ananta Saha, (2011) 5 SCC 142; Nishakar Khatua v. State
of Orissa & Ors.,(2012)I ILR Cutt.19; Rajiv Pujari v. State of Orissa
& Ors., 2010(II)ILR Cutt. 1008; Centre for PIL v. U.O.I, (2012) 3
SCC 1 and Surinder Singh Brar v. Union of India, (2013) 1 SCC
403. On perusal of the aforesaid judgments, we may note that the
said judgments are distinct on facts and are no applicability to the
present case.
43. Therefore, we are of the considered view that the fact
situation that has arisen for consideration in the present case is not
similar to that which arose in the case of Rajiv Pujari (supra) and we
are satisfied that the records produced clearly disclose the necessary
application of mind by the executive prior to granting approval for
publication of Section 6 declaration.
44. We next come to deal with the issue as to whether the State
could have proceeded to acquire the land under part-II ant not Part-
VII of the L.A. Act as alleged and whether the action taken by the
State amounts to a "colourable exercise of power" by the State. In
this respect, it would be important to take note of the fact that the
State in its submissions before this Court has stated that setting up
of a power plant is of a vital importance for the development of the
State and its industrial sector as well as domestic consumption and,
therefore, satisfies the requirements of "public purpose" as defined
under Section 3(f) of the L.A. Act. The State have also referred to its
Industrial Policy Resolution, 2007 and, in particular, Clause-10
thereof wherein "infrastructure project" includes power plants. Since
setting up of a "power plant" as declared by the State to be an
"infrastructure project" in terms of its Industrial Policy Resolution,
2007, Clause 9.3 the State enterprise, known as "Industrial
Development Corporation Orissa" (IDCO) was required to carry out
its objectives and, in particular, for infrastructure project Clause
16.3 entitled allocation of Government land at concessional
industrial rates and consequently, since the IPR 2007 had declared
"power plant" as "infrastructure project", establishment of a power
plant would in our view no doubt subserve "public purpose". Once
the power plant is set up in terms of the MoU entered into between
the State Government as well as the KVK, the State would be entitled
to substantial benefits arising out of the said MoU and there cannot
be any doubt raised that the acquisition, sub-serves a "public
purpose".
45. Learned counsel appearing for the IDCO also supported the
aforesaid submissions and stated that under Section 31 of the OIIDC
Act, 1980 stipulates that whenever land is required by the
Corporation for any purpose in furtherance of the objectives of the
Act, it could approach the State Government to initiate action under
the L.A. Act on behalf of the Corporation, since admittedly the IDCO
is an instrumentality of the State to sub-serve Government policy.
In view of the aforesaid findings, we are clearly of the
considered view that acquisitions of land for the purpose of setting
up of KVK Power Plant does fulfill the criteria for being declared as
sub-serving "public purpose".
46. Insofar as the contention raised regarding payment having
been made by the KVK to IDCO and who in turn, made the payments
to the Land Acquisition Officer, for disbursement to the land oustees.
It is important to take note of Section 31(2) of the OIIDC Act, 1980,
whereby the IDCO is empowered to make requisition to the State for
the purpose of acquisition of land under the L.A. Act, 1894. The
amount of compensation awarded and all other charges incurred in
the acquisition of such land shall be paid by the Corporation and the
land shall vest in the Corporation. In the case at hand, admittedly,
even though KVK has paid the money to IDCO, IDCO has, in fact,
deposited the compensation amount with the Land Acquisition
Officer. In this respect, reliance is also placed on Section 6 (Second
Proviso) read with Explanation-2 which clearly provides that, no
such declaration under Section 6 shall be made unless the
compensation to be awarded is to be paid out of the funds of the
Corporation owned or controlled by the State and such
compensation shall be deemed to be compensation to be paid out of
"public revenue". In the case at hand, Explanation-2 (2nd proviso) of
Section 6 is clearly attracted and there exists no evidence on record
to the contrary. Therefore, it is held that since IDCO (the
Government Corporation) has deposited the money with the Land
Acquisition Officer, the deeming provision of Explanation-2 comes
into operation and consequently, it has to be "deemed to be
compensation paid out of public revenue". In this respect the
judgment of the Hon'ble Supreme Court in the case of Pratibha
Nema (supra) and Soorarama Pratap Reddy (supra) are vitally
important.
47. The next issue is to be dealt with in the present case is
based on the allegation that KVK was involved in the process of
selecting the land for acquisition. In this regard, on consideration of
the submissions advanced by the learned counsel representing the
various parties, we are of the considered view that for the purpose of
setting up of mega power plant having a capacity of 200 M.W.
requiring a investment of nearly Rs.5000.00 crores, it is absolutely
essential that the location of such land must be suitable, for the
purpose of the Thermal Power Plant and various important criteria,
such as, rail and road connectivity, availability of water and
convenience of power evacuation are all issues which only the project
proponent company i.e. KVK has to ascertain for itself.
Consequently, identifying the land and suggesting the land to IDCO
for the purpose of acquisition by the KVK, does not in any manner
effect the "public purpose" part of the Land Acquisition Act. In a
country such as ours, where industrialisation is vital for its economic
future, we find no justification in entertaining the contentions of the
petitioners that the mere involvement of the project proponent i.e.
KVK in identifying the land brought the said acquisition under Part-
VII and not part-II of the Land Acquisition Act.
48. In the case of Pratibha Nema (supra), similar arguments
had been raised by the project opponents and the same was rejected
by the Hon'ble Supreme Court in Para-1 and Para-33 respectively
which are quoted hereunder:
"1. The acquisition of 73.3 hectares of dry
land situate in Rangwasa village of Indore district and
tehsil belonging to the appellants and others is the
subject matter of challenge in these appeals filed by
the land holders. The said extent of land was notified
for acquisition under Section 4(1) of the Land
Acquisition Act (hereinafter referred to as "the Act") for
the alleged public purpose of "establishment of
diamond park". This parcel of land together with an
extent of 44.8 hectares of government land was meant
to be placed at the disposal of the Industries
Department and/or Madhya Pradesh Audyogik Kendra
Vikas Nigam Ltd. (hereinafter referred to as "the
Nigam") for the purpose of allotting the same to various
industrial units- the foremost among them being the
9th respondent company, for setting up diamond
cutting and polishing units with modern technology.
The proposal in this regard emanated from the General
Manager of District Industries Centre, on the initiative
taken by the 9th respondent. After the land was located
by a Joint Inspection Committee of the officials, the
Government of Madhya Pradesh (Commerce and
Industries Department) had given sanction "in
principle" for the acquisition. The District Collector,
Indore through his letter dated 24-1-1996 sought the
approval of the Commissioner, Indore Division to
invoke Section 17(1) of the Act in order to expedite the
process of acquisition. In that letter, the Collector
mentioned that prestigious exporters from India as well
as foreign countries were likely to establish their units
in this park which would generate a good deal of
foreign exchange and create employment potential."
33. We are of the view that none of the factors
pointed out by the learned counsel for the appellants
make any dent on the orientation towards public
purpose nor do they establish that the acquisition was
resorted to by the Government to achieve oblique ends.
The speed at which the proposal was pursued should
be appreciated rather than condemning it, though the
overzealousness on the part of authorities concerned to
short-circuit the procedure has turned out to be
counter- productive. True, the tardy progress of
acquisition would have sent wrong signals to the
prospective investors, as contended by the learned
Advocate-General. However, due attention should have
been given to the legal formalities such as holding of
enquiry, specification of public purpose in clear terms
and giving sufficient indication of State meeting the
cost of acquisition wholly or in part. At the same time,
we cannot read mala fides in between the lines; in fact,
no personal malice or ulterior motives have been
attributed to the Chief Minister or to any other official.
The material placed before us do not lead to the
necessary or even reasonable conclusion that the
Government machinery identified itself with the private
interests of the Company, forsaking public interest.
Public purpose does not cease to be so merely because
the acquisition facilitates the setting up of industry by
a private enterprise and benefits it to that extent. Nor
the existence or otherwise of public purpose be judged
by the lead and initiative taken by the entrepreneurs
desirous of setting up the industry and the measure of
coordination between them and various state agencies.
The fact that despite the unwillingness expressed by
AKI Ltd., to go ahead with the project, the Government
is still interested in acquisition is yet another pointer
that the acquisition was motivated by public purpose."
49. The name of KVK having been mentioned in the notice
under Section 5-A by itself could not make the acquisition come
under Part-VII of the Act, when ingredients of Part-II have been fully
satisfied. No doubt, the name of KVK has been mentioned in Section
5-A, but in the notification under Section 4 and under Section 6 of
the L.A. Act, the name of the KVK has not been mentioned.
In this respect, we are of the considered view that
mentioning the name of KVK in 5-A notice is essential in order to
make the land owners aware of the purpose to which the land in
question would be utilized. In fact, we are of the considered view that
the State while not indicating the name of KVK in Section-4 and
Section-6 notification, has correctly indicated the name of KVK
under Section-5 notification in order to make the people who are
likely land oustees aware of the actual purpose of the acquisition. In
fact, we are of the considered view that, had the name of the KVK
had not been indicated in the Section-5 notice, it may probably have
given rise an objection being raised on behalf of the land oustees that
they had not been informed as the actual purpose of acquisition.
Thus the naming of the KVK Section-5 notice, was in compliance of
the principle of audi alteram partem and not in derogation thereof.
We are of the further considered view that the acquisition in
fact was made for and on behalf IDCO and consequently the name of
IDCO was mentioned both in Section-4 as well as Section-6
notification and we find no error in the same. Insofar as allegation of
"colourable exercise of power" in the matter of acquisition is
concerned, we find no material available on record to substantiate
the aforesaid allegation. No motive had been alleged by the
petitioners either to KVK or to the State Government to allege that
the acquisition of land was initiated by mala fide or colourable
exercise of power. It is well settled by the Hon'ble Supreme Court
both in the case of Somawanti v. State of Punjab (supra) and
Pratibha Nema (supra) that the conclusiveness of Section-6
declaration is open to challenge only on the ground of colourable
exercise of power. It is well settled that in order to establish the
allegation of mala fides and/or colourable exercise of power, the
burden is on the petitioner. In the present case, apart from merely
making allegation of colourable exercise of power, the petitioner had
provided no material whatsoever before this Court to substantiate
such allegation. It is also to be borne in mind that in the case of
Soorarama Pratap Reddy (supra), the Hon'ble Supreme Court in
paragraph-119 has came to hold as follows:
"119. In our judgment, in deciding whether
acquisition is for "public purpose" or not, prima facie,
Government is the best judge. Normally, in such
matters, a writ Court will not interfere by substituting
its judgment for the judgment of the Government."
And consequently, we hold that the allegation of colourable
exercise of power is unsubstantiated.
50. Insofar as payment of compensation is concerned, the MOU
entered into between the KVK and the State Government required
KVK to pay the cost of the land to IDCO in case the land acquired for
the purpose. As noted hereinabove, no payments have been made by
KVK to the Land Acquisition Officer and instead, IDCO has made all
payments to the Land Acquisition Officer as required under Section
31(2) of the OIIDC Act read with Section 6 (second proviso)
Explanation-2 to the L.A. Act.
51. In the case of Pratibha Nema (supra), the Supreme Court
held in paragraph-25 as follows:
"25. It seems to be fairly clear, as contended by the
learned counsel for the appellants, that the amount
paid by the Company was utilised towards payment of
a part of interim compensation amount determined by
the Land Acquisition Officer on 7.6.1996 and in the
absence of this amount, the Nigam was not having
sufficient cash balance to make such payment. We
may even go to the extent of inferring that in all
probability, the Nigam would have advised or
persuaded the Company to make advance payment
towards lease amount as per the terms of the MOU on
a rough-and-ready basis, so that the said amount
could be utilized by the Nigam for making payment on
account of interim compensation. Therefore, it could
have been within the contemplation of both the parties
that the amount paid by the Company will go towards
the discharge of the obligation of the Nigam to make
payment towards interim compensation. Even then, it
does not in any way support the appellants' stand that
the compensation amount had not come out of public
revenues. Once the amount paid towards advance
lease premium, maybe on a rough-and-ready basis, is
credited to the account of the Nigam, obviously, it
becomes the fund of the Nigam. Such fund, when
utilized for the purpose of payment of compensation,
wholly or in part, satisfies the requirements of the
second proviso to Section 6(1) read with Explanation 2.
The genesis of the fund is not the determinative factor,
but its ownership in praesenti that matters."
And consequently, in view of the aforesaid judgment once
the money is deposited by the KVK in the account of IDCO, the said
money becomes part of the public fund of IDCO and payment out of
public fund held by IDCO to the Land Acquisition Officer would
amount to the out of public fund. Therefore, complying with the
second proviso of Section 6 of the Land Acquisition Act, this
conclusion is also supported by another decision of Hon'ble Supreme
Court in the case of Nand Kishore Gupta (supra). Paragraph 61 of
the said judgment is quoted hereinbelow:
"... ... This is apart from the fact that through
this agreement, only the extent of the compensation
payable by the company to YEIDA was decided.
However, once all the amounts went to the coffers of
YEIDA, it would lose its independent character as
premium. When it goes into the coffers of YEIDA, it is
YEIDA which would make the payments of the
estimated compensation and thereby it would be as if
the compensation is paid not by the Company, but by
YEIDA."
52. In view of the aforesaid judgment of Nand Kishore Gupta
(supra), Hon'ble Supreme Court stated that the case for determining
whether acquisition under Part-II or Part-VII of the L.A. Act, the case
laid down by the Hon'ble Supreme Court in the case of Nand Kishore
Gupta (supra) states that the basic idea for acquisition of part-VII of
the Act is the "total transfer of ownership of the acquiring land in
favour of the petitioner". In this respect, para-53 would be most
relevant which is as follows:
"53. This would suggest that even when the
acquisition is meant for Company, the concept of
public purpose has to be at the back of the mind of the
acquiring body like the Government. Here, of course,
there is no question of any agreement with the
Company as three eventualities described under
Section 40 of the Act are not available for the simple
reason that the basic idea for the acquisition under
Part VII of the Act is the total transfer of the ownership
of the acquiring land in favour of the Company. That is
obviously not present here. We do not see any factual
background for holding that any agreement was
contemplated in between the State Government and
the Company or for that matter, YEIDA and the
Company, as envisaged in Sections 39, 40 and 41 of
the Act."
We are of the considered view that the aforesaid judgment in
the case of Nand Kishore Gupta (supra) squarely applies to the fact
situation which arise for consideration in the present case and
clearly in the case at hand, in fact, there is no transfer of ownership
of land in favour of KVK. Upon the acquisition of land, the land gets
vested with the State Government and the State Government in turn
grants long term lease of the said land to IDCO who in turn have
sublease the land in favour of KVK in terms of the lease agreement.
Consequently, it is clear therefrom that the acquisition in the present
case is an acquisition under Part-II and not under Part-VII of the L.A.
Act as alleged.
53. Further contentions raised by the petitioners that the KVK
had made certain concurrent purchase of land. In this respect, in
consideration of the submissions made, we find that KVK had
purchased certain amounts of land privately through negotiation
(chart has been indicated hereinabove in para-37). The fact that KVK
has purchased such land after the issue of 4(1) notification under
the L.A. Act, is specifically permitted under the R & R Policy, 2006
framed by the State of Orissa which is quoted hereinbelow:
"Project proponent of for direct purchase of land
on the basis of negotiated price after issue of notification
requiring acquisition of land under the relevant Act. If
acquisition of land through direct purchase fails, other
provisions of the relevant Act may be invoked."
Therefore, the purchase of private land by the KVK after 4(1)
notification is specifically encouraged by the State under the R & R
policy 2006 and this fact by itself is of no consequence and has no
impact on the issue as to whether the land acquired by the State
Government comes under Part-II or Part-VII of the L.A. Act. The only
issue as to whether "public purpose" is subserved in terms of the
judgment cited hereinabove.
54. The further contention of the petitioners is that IDCO would
only make acquisition of land under the OIIDC Act, 1980 for the
purpose of "establishing industrial estate" or "industrial area" Under
Section 2(h) and 2(i) respectively is not to be considered.
Section 31 of the OIIDC Act 1980 specifically vests the
power in IDCO to make requisition of acquisition of land by the State
Government under the L.A. Act. In this respect, Section 14(i) which
has been quoted in para-28 hereinabove clearly states the function of
the Corporation to be "generally to promote and assist in the rapid
and orderly establishment, growth and development of industries,
trade and commerce in the State, and sub-Section(ii) thereof says
that in particular, and without prejudice to the generality of Clause-
(i)". Thereafter states the various particular purposes for which
acquisition can take place. In this respect, learned counsel for the
IDCO's submission is that the words "in particular" and without
prejudice to the generality of sub-clause(i) ought to be treated as
merely illustrative and not limiting the scope of sub-clause-(i) in any
manner.
55. The Hon'ble Supreme Court in the case of S.K. Singh
(supra) in relevant paragraphs-39 and 41 quoted hereunder:
"39. Chapter IXA of the Penal Code which deals
with offences relating to elections was introduced in
the Code by the Indian Election Offences and Inquiries
Act (XXXIX of 1920). Section 171A defines 'candidate'
and 'electoral right'. An electoral right means the right
of a person to stand or not to stand as, or to withdraw
from being, a candidate or to vote or refrain from
voting at an election. Section 171C, which deals with
the offence of undue influence reads as- under:
"(1) Whoever voluntarily interferes or
attempts to interfere with the free exercise of any
electoral right commits the offence of undue
influence at an election.
(2) Without prejudice to the generality of the
provisions of sub-section (1), whoever
(a) threatens any candidate or voter, or any
person in whom a candidate or voter is interested,
with injury of any kind, or
(b) induces or attempts to induce a candidate
or voter to believe that he or any person in whom
he is interested will become or will be rendered an
object of Divine displeasure or of spiritual censure,
shall be deemed to interfere with the free exercise
of the electoral right of such candidate or voter,
within the meaning of sub- section(1)."
Sub-section (3) lays down that:
"A declaration of public policy or a promise of
public action, or the mere exercise of a legal right
without intent to interfere with an electoral right,
shall not be deemed to be interference within the
meaning of this section."
Section 171F provides for the penalty for the
offence of undue influence which is either
imprisonment upto one year or with fine or both.
Section 171G provides:
"Whoever with intent to affect the result of an
election makes or publishes any statement
purporting to be a statement of fact which is false
and which he either, knows or believes to be false
or does not believe to be true in relation to the
personal character or conduct of any candidate
shall be punished with fine."
41. We do not think that the Legislature, while
framing Ch. IXA of the Code ever contemplated such a
dichotomy or intended to give such a narrow meaning
to the freedom of franchise essential in a representative
system of government. in our opinion the argument
mentioned above is fallacious. It completely disregards
the structure and the provisions of s. 171C. Section
171C is enacted in three Darts. The first sub-section
contains the definition of "undue influence". This is in
wide terms and renders a person voluntarily interfering
or attempting to interfere with the free exercise of any
electoral right guilty of committing undue influence.
That this is very wide is indicated by the opening
sentence of sub-s. (2), i.e. "without prejudice to the
generality of the provisions of sub-section (1)." It is
well-settled that when this expression is used anything
contained in the provisions following this expression is
not intended to cut down the generality of the meaning
of the preceding provision. This was so held by the
Privy Council in King-Emperor v. Sibnath Banerji,
1945 FCR 195 = (AIR 1945 PC 156)."
56. In view of the aforesaid authoritative pronouncement of the
Hon'ble Apex Court, we are of the considered view that sub-section(i)
of Section 14 is independent and in no manner limited by the
illustrations contained in sub-section(ii) of Section 14. Therefore, in
terms of Section 31 of the OIIDC Act, the Corporation has invoked
the authority and sought for acquisition under the L.A. Act on behalf
of the Corporation and such act cannot be held to be illegal or invalid
in any manner.
It is also pertinent to note herein that once the State have
issued a notification under Section 4(1) of the L.A. Act, the same can
also be construed as the notification for the purpose of Section 14(ii)
of the OIIDC Act, inasmuch as, the same notification spells out the
initiation behind acquiring the land for setting up of the industry
which sub-serves "public purpose".
57. Therefore, we are of the considered view that the
requirement of Section 14(ii) has also been satisfied in the fact
situation of the present case.
58. In view of the findings arrived at hereinabove, the essential
issues raised by the petitioners relate to and/or would impact on
quantum of compensation which have to be taken into consideration
while fixing compensation. Therefore, we are of the considered view
that the said matter can be dealt with under Sections 18 and 23 of
the Land Acquisition Act and consequently we find no merit in the
writ application and the challenge made to the land acquisition.
Accordingly, we are of the considered view that the writ applications
being devoid of any merit are liable to be dismissed and we so direct.
All interim orders passed stand vacated. No costs.
.................................
I.Mahanty, J.
B.N.Mahapatra, J. I agree.
.................................
B.N.Mahapatra, J
The Orissa High Court, Cuttack
2014-KCP/RKS/PKP/RKM
