Orissa High Court
M/S. Visa Power Limited Represented vs State Of Orissa & Others ....... ... on 27 August, 2012
Equivalent citations: 2012 AIR CC 3394 (ORI), 2013 (122) AIC (SOC) 10 (ORI), AIR 2013 (NOC) (SUPP) 1113 (ORI.), (2013) 1 CLR 106 (ORI), (2012) 114 CUT LT 993
HIGH COURT OF ORISSA: CUTTACK
W.P. (C) NO. 745 OF 2011
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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M/s. VISA Power Limited represented ....... Petitioners
through its Senior General Manager
and another.
-Versus-
State of Orissa & others ....... Opposite Parties
For Petitioners -- M/s S.P.Sarangi,
Mr.P.P.Mohanty,P.K.Dash,
A.Pattnaik, B.P.Das.
For Opposite Parties -- Addl. Govt. Advocate,
(O.P. Nos. 1 to 4).
M/s. S.P.Mishra, Sr.Advocate,
(O.P.No.5)
Mr.S.Nanda,B.Mohanty,
A.K.Dash, S.K.Sahoo,
PRESENT:
THE HONOURABLE SHRI JUSTICE B.K.MISRA
Date of judgment: 27.08.2012
B.K.MISRA, J.In this writ application the petitioners assail the propriety of the notice dated 10.12.2010 (Annexure-7) issued by the Tahasildar, Athagarh (opposite party no.4) and initiation of O.L.R. Ceiling Case No.1 of 2010 with regard to purchase of land more than 10 standard acres and non-filing of return.
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2. The petitioners company which is a private limited company registered under the Companies Act, 1956 with the principal objective to set up a thermal power plant of about 1000 MW capacity signed a Memorandum of Understanding with the Government of Orissa in Energy Department on 26.9.2006, backed by one supplemental Memorandum of Understanding signed on 15.12.2009. For setting up such power plant and associated infrastructures and disposal of ash etc. 1100 acres of land was required. As per the terms of the Memorandum of Understanding the land for the project was to be acquired by the Government through Orissa Industrial Infrastructure Development Corporation (IDCO), opposite party no.5 and leased out to the petitioner no.1 Company. Accordingly, the petitioner no.1 Company issued a requisition for acquisition of land to IDCO through Industrial Promotion and Investment Corporation of Orissa Limited (IPICOL). On receipt of such requisition, the opposite party no.5 submitted proposals for acquisition of 1088.345 acres of land comprising 3 villages, namely Brahmanbasta, Bamanpur and Kalankipur under Athagarh Tahsil of Cuttack district. Out of the total land to be acquired 305.620 acres were Government land and the rest 783.125 acres were private land. In respect of acquisition of 447.526 acres of land in village Bamanpur, Kalankipur and Brahmanbasta notification under Section 4(1) of the Land Acquisition Act was published on 13.5.2010 and another notification was also issued by the Government under Section 4(1) of the Land Acquisition Act on 3 9.6.2010 vide Annexure-4 series. The Government formulated the Resettlement and Rehabilitation Policy, 2006 and as per the guidelines of the said policy for establishment of industry the entrepreneurs are to purchase the land from private parties and accordingly the petitioner no.1 Company requested IDCO for purchasing the identified private land through private negotiation. It is the case of the petitioner no.1 that to hasten up establishing the project the Company with all bonafide purchased about 60 acres of private land out of the area notified under Section 4(1) of the Land Acquisition Act. Such private land purchased through private negotiation by petitioner no.1 Company is detailed under Annexure-5. Furthermore, the petitioner no.1 Company in an application to opposite party no.5 sought for permission under Section 73(c) of the Orissa Land Reforms Act and opposite party no.5 on 23.8.2010 recommended the said proposal to the Government of Orissa in the Department of Revenue and Disaster Management i.e. opposite party no.1 which is pending for consideration. The copy of the letter dated 23.8.2010 of IDCO to opposite party no.1 is annexed to the writ petition as Annexure-6.
3. According to the case of the petitioner, the petitioner no.1 Company purchased 60 acres of land through private negotiation after the notification under Section 4(1) of the Land Acquisition Act was issued. In the sale deed it has been recorded that the lands were being purchased for industrial purpose. But surprisingly the opposite party 4 no.4 issued notice to petitioner no.1 Company for submitting return under Section 40(A) of the OLR Act, 1960 on the ground that the petitioner no.1 Company had purchased the lands more than 10 standard acres. It is the case of the petitioner that the project in question involves huge investment and with a view of setting up power project, the petitioner no.1 Company purchased the lands from the private tenants only after publication of notification under Section 4(1) of the Land Acquisition Act and any delay in the matter would have wider ramification in setting up the industry and accordingly the petitioners have prayed that the entire proceeding initiated under the Orissa Land Reforms Act i.e. in Ceiling Case No.1 of 2010 as well as the impugned notice issued by the opposite party no.4 under Annexure-7 be quashed since the provisions of the Orissa Land Reforms Act is not applicable as the land has been acquired for setting up an industry.
4. The opposite party nos. 2 to 4 have filed their counter affidavit wherein while admitting the petitioners case about the setting up the power project, it is their stand that the Government of Orissa issued notification under Section 4(1) of the Land Acquisition Act for acquisition of private land for the public purpose i.e. for setting up of an industry consisting of an area of 204.538 acres of land in Mouza Brahmanbasta under Athagarh Tahsil in the district of Cuttack. Similarly, the Government of Orissa issued notification under Section 4(1) of the Land Acquisition Act for acquiring 172.69 acres of land in 5 Mouza Bamanpur. It is also admitted by the opposite party nos.2 to 4 that the petitioner no.1 Company purchased some of the land from private individuals as per notification under the Land Acquisition Act vide Annexure-4 series. But since there has been no notification issued under Section 73 (c) of the Orissa Land Reforms Act, no illegality has been committed by the opposite party no.4 in issuing notice under Annexure-7 asking the petitioner company to submit return in view of the provisions contained under Section 37 of the Orissa Land Reforms Act. Accordingly, it is prayed that the writ petition being devoid of merit is liable to be dismissed.
5. From the pleadings of the parties, it is seen that for establishing the power project by the petitioner no.1 Company the Government issued necessary notification under Section 4(1) of the Land Acquisition Act i.e. for acquisition of lands in Mouza Brahmanbasta, Bamanpur and Kalankipur under Athagarh Tahsil. Similarly, there is no dispute that as per the Resettlement and Rehabilitation Policy of the Government the petitioner no.1 Company has also purchased about 60 acres of private lands through private negotiation out of the villages notified under Section 4(1) of the Land Acquisition Act i.e. in the villages of Brahmanbasta, Bamanpur and Kalankipur under Athagarh Tahsil in the district of Cuttack. It is also admitted by the petitioners in Para-9 of the writ petition that the petitioner no.1 Company for purchasing land through private negotiations applied to opposite party no.5 for permission under 6 Section 73 (c) of the Orissa Land Reforms Act which was recommended by the opposite party no.5 to the Government on 23.8.2010 vide Annexure-6. Admittedly, the matter is pending before the State Government and no material has been placed before this Court that any notification to have been issued by the Government in Revenue and Disaster Management Department under Section 73 (c) of the O.L.R. Act.
6. Learned counsel appearing for the petitioners contended that initiation of Ceiling Case No.1 of 2010 would impede the power generation affecting the progress of the State and when the petitioner no.1 Company has invested huge amount for establishing the Mega Power Project any delay caused would have an cascading effect. Mr. Das, learned counsel for the petitioner Company submitted that as per the Memorandum of Understanding, it is the responsibility of the State Government to acquire the land and hand over the same to the petitioner no.1 Company free from all encumbrances and only to hasten up such acquisition of lands with all bonafide intention, the petitioner no.1 Company purchased lands from private tenants only after publication of the notification under Section 4(1) of the Land Acquisition Act. Accordingly, it was further submitted that specific notification under Section 73 (c) of the Orissa Land Reforms Act is not necessary as the Government has already issued a notification in the official gazette for acquisition of lands under Section 4 of the Land 7 Acquisition Act for the petitioner no.1 Company with a view of establishing a power project.
7. Learned Additional Government Advocate appearing for the State Government contended that when there has been no notification published under Section 73 (c) of the Orissa Land Reforms Act, the purchase of lands from private tenants by the petitioner no.1 Company beyond the prescribed limit of 10 standard acres of agricultural land the petitioner no.1 Company is duty bound to comply with the provisions of Section 38 of the Orissa Land Reforms Act and when there is an infraction, the Tahasildar, namely, opposite party no.4 has rightly started the ceiling case and issued notice and for that no fault can be found in that especially when the petitioner being cognizant of such provisions in the Orissa Land Reforms Act has already sought for permission under Section 73(c) from the Government through IDCO i.e. before purchasing lands from private tenants.
8. Section 73(c) of the Orissa Land Reforms Act reads as follows:-
"73. Act not to apply to certain lands-Nothing contained in this Act, shall apply-
Xx xx xx (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".8
9. Thus, from a plain reading of Section 73 of the Orissa Land Reforms Act, it is seen that the Government has to issue notification from time to time regarding establishment of industry and declared the area as reserved for urban, non-agricultural or industrial development or for any other specific purposes and once such area is declared as such the O.L.R. act would not be applicable.
10. Indisputably, though notification under 4(1) of the Land Acquisition Act has been issued for acquiring lands for petitioner no.1 Company in different villages of Athagarh Tahsil but no notification under Section 73(c) of the Orissa Land Reforms Act has been issued and no material has been produced by the petitioners if any such notification under Section 73(c) of the O.L.R. Act has been issued by the State Government pursuant to the letter issued by opposite party no.5 as at Annexure-6. When admittedly, there is no iota of material on record to establish that the land in question has been reserved for setting up an industry, namely the power plant by a notification issued in the official gazette of the Government within the ambit of Section 73 (c) of the O.L.R. Act, it is difficult to sustain the submission of Mr. Das, learned counsel appearing for the petitioners that there is no necessity of a separate notification to be issued by the State Government under Section 73(c) of the Land Acquisition Act in view of the Gazette Notification published by the Government under Section 4(1) of the Land Acquisition Act. There can be no controversy that Orissa Land Reforms Act is a special enactment so also the Orissa 9 Land Acquisition Act. Both are independent statutes. When the legislature in their wisdom have incorporated the provisions like Section 37 to 40(A) and 73 (c ) in the Orissa Land Reforms Act, 1973 the rigors of those Sections cannot be taken away on the ground that notification for acquisition of land has been issued by the State Government under the Land Acquisition Act. In the instant case, when the petitioner no.1 Company acquired 60 acres of lands which is more than 10 standard acres of land, the petitioner no.1 Company is required to file return under Section 40(A) of the Orissa Land Reforms Act and when such return was not filed the statutory authority, namely, the Tahasildar, Athagarh, in my humble view was perfectly justified in issuing notice as at Annexure-7 and in initiating Ceiling Case No.1 of 2010 against the petitioners and there is nothing wrong when such statutory provisions have been followed by opposite party no.4. The decision relied upon by the petitioners reported in 105 (2008) CLT 649, Raghunath Jena and others -v- Adkikanda Panda has no application to the facts of this case as the facts of that case are completely different from the facts of the case on hand.
Similarly the decision relied upon by the petitioners i.e. the case reported in 70 (1990) C.L.T. 77, M/s. Orient Paper & Industries Limited V. State of Orissa and others has no application to the present case as in the instant case the lands acquired by the petitioners company have not been recorded in the Settlement Record of Rights as "industrial land and homestead land", besides that in 10 view of the decision of the Hon'ble Apex Court as reported in 1999(II) OLR (SC)-182, Om Prakash Agarwal and others V. Batara Behera and others, the ratio decided in M/s. Orient Paper & Industries Limited (supra) stands overruled as in the words of the Hon'ble Apex Court the provisions of Orissa Land Reforms Act applies to all land which is either used or capable of being used for agriculture purpose and unless the said lands in question have been reserved for any of the purposes as referred to in Section 73(c) of the Land Reforms Act by a notification to be issued by the State Government.
11. In the premises, the submissions of the learned counsel for the petitioners is not tenable in the eye of law and the petitioners have failed to establish their case and accordingly, the writ petition being devoid of merit stands dismissed.
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B.K. Misra, J.
Orissa High Court, Cuttack.
The 27th August, 2012/RNS