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