Orissa High Court
Kalia Hati & Others vs State Of Odisha & Others on 30 June, 2015
Equivalent citations: AIR 2015 ORISSA 138, (2016) 4 SERVLR 702, (2015) 2 CLR 823 (ORI), (2015) 120 CUT LT 803, (2015) 154 ALLINDCAS 545 (ORI), (2016) 121 CUT LT 551, (2016) 1 SCT 334, (2015) 4 KER LT 7
Author: Pradip Mohanty
Bench: P.K.Mohanty, A.K. Rath
ORISSA HIGH COURT: CUTTACK
FULL BENCH
WP(C) NO.10431 OF 2012
In the matter of a reference made by a Division Bench of this Court vide
order dated 05.05.2015.
..............
Kalia Hati & others .... Petitioners
-Versus-
State of Odisha & others .... Opp. Parties
For the petitioners : M/s Samir Kumar Mishra,
M. K. Pati, R.K. Mohpatra
and B.P. Satpathy, Advocates.
For the opp. parties : Mr. J.P. Patnaik (AGA),
(for o.ps.1, 3, 4 & 7)
Mr. G.Mukherjee, Advocate,
(for o.p. 2)
Mr. J.Das and Mr. S.S. Das,
Sr. Advocates.
(for o.ps. 5 & 6)
...............
PRESENT:
THE HONOURABLE MR. JUSTICE P.K.MOHANTY,
THE HON'BLE DR. JUSTICE A.K. RATH
AND
THE HONOURABLE MR. JUSTICE BISWAJIT MOHANTY
Date of hearing : 11.05.2015 : Date of judgment : 30 .06.2015
PRADIP MOHANTY,J. This Full Bench has been constituted on the basis of a
reference made by a Division Bench of this Court by order dated
05.05.2015 to answer the following question:
"Whether in the background of the entire Scheme of
OIIDCO Act, 1980 would it be proper to say that as per the
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said Act, IDCO can cause acquisition of land only for the
purpose of establishing industrial estate/industrial area
and for no other purpose?"
2. The above reference has been made in view of the conflicting
views expressed on the aforesaid issue by the two Division Benches of
this Court in Rajkumar Gunawant & another v. State of Orissa & others,
2012 (Sup-II) OLR 349 and Sachalabala Sethy & others v. Chief Secretary
& Chief Development Commission, Odisha & others, 2014 (II) ILR -CUT- 64.
3. In Rajkumar Gunawant (supra) a Division Bench of this
Court held that on a reading of the objects and reasons of the preamble
of the Orissa Industrial Infrastructure Development Corporation Act,
1980 (hereinafter referred to as "the Act 1980") and definitions of
"Industrial Area" and "Industrial Estate" as defined in Sections 2(h) and
2(i) and provision of Sections 14, 15 and 31 of the said Act, the
Corporation has to acquire land for any "industrial area" to form
"industrial estate". Thus the Industrial Development Corporation of
Orissa (hereinafter referred to as "the IDCO") can only cause acquisition
of land for an "industrial area" in which an "industrial estate" can be
established. In Sachalabala Sethy (supra) a coordinate Bench of this
Court without referring to Rajkumar Gunawant came to hold that sub-
section (i) of Section 14 of "the Act 1980" is independent and in no
manner limited by the illustrations contained in sub-section (ii) of
Section 14.
4. At this stage, it is apposite to glance through the relevant
provisions of "the Act 1980", which was enacted by the State Legislature
to provide for the establishment of a Corporation for the development of
industrial infrastructure in the State of Odisha.
Section 2(h) of "the Act 1980" defines "industrial area" to mean-
"(h) "industrial area" means any area declared to be an
industrial area by the State Government by notification,
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which is to be developed and where industries, industrial
housing and related services are to be accommodated"
"Industrial estate" is defined by Section 2(i) to mean -
"(i) "industrial estate" means any site selected by the State
Government where the Corporation builds factories and
other buildings, services and amenities and makes them
available for any industry or class of industries"
5. Sections 14, 15 and 31 of "the Act 1980", which are hub of
the issue, are quoted below;
"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 generality 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.
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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;
(b) to purchase by agreement or to take on lease or
under any form of tenancy any land to erect such
buildings and to execute such other works as may be
necessary for the purpose of carrying out its duties
and functions;
(c) to allot plots, factory sheds or buildings or part of
buildings, including residential tenements, to
suitable persons in the industrial estates established
or developed by the Corporation;
(d) to modify or rescind such allotments, including the
right and power to evict the allottees concerned on
breach of any of the terms or conditions of the
allotment;
(e) to constitute advisory committees to advise the
Corporation;
(f) to engage suitable consultants or persons having
special knowledge or skill to assist the Corporation in
the performance of its functions;
(g) to enter into and perform all such contracts as it may
consider necessary or expedient for carrying out any
of its functions; and
(h) to do such other things and perform such acts as it
may think necessary or expedient for the proper
conduct of its functions and the carrying into effect
the purposes of this Act.
xxx xxx xxx
31. Acquisition of land. - (1) Whenever any land is
required, by the Corporation for any purpose of 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,
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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."
6. The basic approach to the interpretation of a statute has
been succinctly put in the case of Utkal Contractors and Joinery Pvt.
Ltd. v. State of Orissa, AIR 1987 SC 1454. Paragraph-9 of the
judgment is quoted hereunder:
"........A statute is best understood if we know the reason
for it. The reason for a statute is the safest guide to its
interpretation. The words of a statute take their colour from
the reason for it. How do we discover the reason for a
statute ? There are external and internal aids. The external
aids are Statement of Objects and Reasons when the Bill is
presented to Parliament, the reports of Committees which
preceded the Bill and the reports of Parliamentary
Committees. Occasional excursions into the debates of
Parliament are permitted. Internal aids are the preamble,
the scheme and the provisions of the Act. Having discovered
the reason for the statute and so having set the sail to the
wind, the interpreter may proceed ahead. No provision in
the statute and no word of the statute may be construed in
isolation. Every provision and every word must be looked at
generally before any provision or word is attempted to be
construed. The setting and the pattern are important. It is
again important to remember that Parliament does not
waste its breath unnecessarily. Just as Parliament is not
expected to use unnecessary expressions, Parliament is
also not expected to express itself unnecessarily. Even as
Parliament does not use any word without meaning
something, Parliament does not legislate where no
legislation is called for. Parliament cannot be assumed to
legislate for the sake of legislation; nor can it be assumed to
make pointless legislation."
7. All provisions of a statute have to be read harmoniously and
any interpretation has to be ex viseribus actus. In Punjab Beverages
Pvt. Ltd. v. Suresh Chand, AIR 1978 SC 995, the Supreme Court
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quoted with approval the immortal words of Lord Coke that "it is the
most natural and genuine exposition of a statute, to construe one part of
a statute by another part of the same statute, for that best expresseth
meaning of the makers'.
8. A Full Bench of this Court in Laxminarayan Sahu v. State
of Orissa and others, 'OLR' Full Bench (1990) 628 observed that it is a
cardinal rule of construction of statute that the construction must be
put from the bare words of the Act itself, if the language used is clear
and unambiguous. In the construction of a statute, the words must be
interpreted in their ordinary grammatical sense, unless there be
something in the context or in the object of the statute in which they
occur or in the circumstances with reference to which they are used to
show that they are used in a special sense different from their ordinary
grammatical meaning.
9. In the backdrop of the aforesaid well settled principles with
regard to the statutory interpretation, the provisions of "the Act 1980"
quoted supra may be examined.
10. Section 14(i) of "the Act 1980" deals with functions of the
Corporation. It provides that the functions of the Corporation shall be
generally to promote and assist in the rapid and orderly establishment,
growth and development of industries, trade and commerce in the State.
Section 14(ii) starts with "in particular, and without prejudice to the
generality of Clause (i)". Thereafter it provides various particular
purposes for which acquisition can be made.
11. What is the meaning of the expression "in particular, and
without prejudice to the generality" appearing in Section 14(ii) of "the Act
1980"?
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In Shiv Kirpal Singh v. Shri V. V. Giri, AIR 1970 SC 2097,
the Supreme Court relying on the decision of the Privy Council in the
case of King Emperor v. Sibnath Banerji, AIR 1945 PC 156 held that
when the expression "without prejudice to the generality of the
provisions" is used anything contained in the provisions following the
said expression is not intended to cut down the generality of the
meaning of the preceding provision. For better appreciation, paragraphs
39 and 41 of the judgment are 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 offences 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."
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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."
xxx xxx xxx
41. We do not think that the Legislature, while framing
Chapter 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 Section 171C. Section 171C
is enacted in three parts. 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 1545 PC 156)."
12. From the aforesaid, the conclusion is irresistible that sub-
section (i) of Section 14 of "the Act 1980" is independent and is couched
in broad terms. The same cannot be in any manner whittled down by the
language of sub-section (ii) of Section 14 of "the Act 1980".
13. Thus, the observation made in Rajkumar Gunawant
(supra) that the IDCO can only cause acquisition of land for an
"Industrial Area" in which an "Industrial Estate" can be established is
per incuriam. The functions and general powers of the Corporation as
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enumerated in Sections 14 and 15 of "the Act 1980" cannot be cabined,
cribbed or confined by the language used in Section 14(ii) of "the Act
1980".
14. The reference is answered accordingly.
The Registry is directed to place the matter before the
assigned Bench.
.....................................
PRADIP MOHANTY, J.
A.K.RATH, J.I agree.
...................................... A.K.RATH, J.
BISWAJIT MOHANTY, J. I agree.
........................................ BISWAJIT MOHANTY, J.
Orissa High Court, Cuttack. The 30th June, 2015/GDS