Orissa High Court
Sudarshan Naik vs State Of Odisha on 11 January, 2019
Equivalent citations: AIRONLINE 2019 ORI 2
Author: S. K. Sahoo
Bench: S. K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No. 9403 of 2014
An application under Articles 226 and 227 of the Constitution of
India.
---------------------
Sudarshan Naik
and Others ......... Petitioners
-Versus-
State of Odisha
and Others ......... Opp. Parties
For Petitioners : - Mr. A.K. Nanda
G.N. Sahu
For Opp. Parties nos. - Mr. Kishore Kumar Mishra
1, 2, 3 and 6: (Addl. Govt. Advocate)
For Opp. Party no.4 : - Mr. Jaganath Patnaik
(Senior Advocate)
For Opp. Party no.5 : - Mr. Rajat Kumar Rath
(Senior Advocate)
---------------------
P R E S E N T:
THE HONOURABLE KUMARI JUSTICE SANJU PANDA
AND
THE HONOURABLE MR. JUSTICE S.K. SAHOO
-----------------------------------------------------------------------------------------------------------------------
Date of Hearing: 04.01.2019 Date of Judgment: 11.01.2019
-----------------------------------------------------------------------------------------------------------------------
2
S. K. SAHOO, J. The petitioners who are thirty five in numbers and
belonged to villages Kurebaga and Siriapali situated in the
district of Jharsuguda, have filed this writ application challenging
the publication of preliminary notification under section 4(1) of
the Land Acquisition Act, 1894 (hereafter '1894 Act') dated
04.07.2007 under Annexure-1 issued by the Joint Secretary,
Revenue and Disaster Management Department, Government of
Odisha, Bhubaneswar relating to purported acquisition of about
Ac. 200.93 dec. land in Mouza Siriapali for public purpose in
connection with establishment of industry by IDCO. They have
further challenged the declaration made under section 6(1) of
1894 Act dated 14.08.2008 under Annexure-3 that such land in
Mouza Siriapali is required for public purpose relating to
establishment of industry by IDCO with a further prayer to quash
the land acquisition proceeding i.e. L.A. Case No.07 of 2006
pending before the Special Land Acquisition Officer, Jharsuguda
(opposite party no.3).
2. It is the case of the petitioners that they are farmers
and primarily depend on agriculture for their livelihood. The
Govt. of Odisha issued a notification (Annexure-1) under section
4(1) of the 1894 Act to acquire an area of Ac. 200.93 dec. land
3
in Mouza Siriapali for construction of an Aluminum Smelter and a
Captive Power Plant by the opposite party no.5 Vedanta
Aluminium Limited. Such notification dated 04.07.2007 was
brought to the public notice in the village by affixing notices in
the public place and also by beating of drums on dated
10.08.2007 but there was no newspaper publication in the
petitioners' village/locality in respect of such notification. It is the
further case of the petitioners that since there was strong rumor
about such land acquisition, the petitioners and similarly affected
farmers enquired about the fact and submitted a representation
on 05.09.2007 under Annexure-2 before the opp. party no.2, the
Collector, Jharsuguda narrating their grievances and requesting
him to exclude their lands from such acquisition proceeding. The
opp. parties nos. 2 and 3 did not take into consideration the
grievances of the petitioners nor afforded any opportunity of
hearing in spite of mandate of law under section 5-A(2) of the
1894 Act.
It is the further case of the petitioners that in view of
the proviso (ii) to section 6(1) of the 1894 Act, no declaration in
respect of any particular land covered by a notification under
section 4(1) shall be made after the expiry of one year from the
date of the publication of such notification. Since section 4(1)
4
notification was made on dated 04.07.2007 and the same was
published in the locality of the petitioners by affixing a copy of
the same in a conspicuous place in the village along with beating
of drum on 10.08.2007 as reveals under Annexure-1 and the
declaration under section 6(1) was issued on 14.08.2008 but
was brought to the notice of the general public by affixing a copy
of the same in the village only on 10.06.2009, such declaration is
beyond the prescribed period for which the proceeding is vitiated
in the eye of law.
It is the further case of the petitioners that though
the Government proposed to acquire the land in village Siriapali
for public purpose that to establishment of industry by IDCO but
the Memorandum of Understanding dated 04.04.2007 between
the Governor of Odisha and the opp. party no.5 Vedanta
Aluminium Ltd. indicates that the said private company agreed to
pay IDCO or the Revenue authorities the cost of the land and
properties standing thereon which clearly established that the
land was not acquired for any public purpose but for a private
company, such steps have been taken at the cost of livelihood of
the petitioners which is malafide, illegal and violates the
fundamental rights guaranteed under Articles 14 and 21 so also
Article 300-A of the Constitution of India.
5
It is the further case of the petitioners that
information supplied under RTI Act vide Annexure-5 indicated
that the cost of acquisition out of public revenues in respect of
the land acquisition case for village Siriapali was not available in
the office of the opp. party no.3, Special Land Acquisition Officer,
Jharsuguda as it was a private project which made it clear that
the land of the petitioners were acquired for a private project
and not for any public purpose of the Government and the entire
expenses for acquisition of land was funded by the private
company i.e. opp. party no.5. In view of the infirmities in the
land acquisition procedure as pointed out above, it was prayed to
quash the notification under Annexure-1, declaration under
Annexure-3 and the entire proceeding in L.A. Case No.07 of
2006.
The writ petition was filed on 12.05.2014 and an
additional affidavit was filed on 10.07.2014 on behalf of the
petitioners indicating therein that the opp. party no.3, Special
Land Acquisition Officer, Jharsuguda issued notices on dated
08.06.2011 and 07.05.2014 to the petitioners to receive the
compensation amount in the said land acquisition proceeding,
copies of which were annexed to such affidavit.
6
3. On 30.07.2014 notices were issued to the opp.
parties on the question of admission and an interim order was
passed in Misc. Case No.8447 of 2014 that any construction
made on the case land shall be subject to the result of the writ
petition.
4. A counter affidavit was filed on behalf of opp. parties
nos.1, 2, 3 and 6 indicating therein that all the statutory
provisions as envisaged under sections 4, 5-A and 6 of 1894 Act
have been followed meticulously with wide publication in the
newspapers and not only in the conspicuous place of the locality
but also by issuing individual notices inviting objections. The
lands were unproductive and barren and there was no irrigation
facility in the area. The lands were acquired by IDCO through
Government for public purpose for establishment of industry and
the IDCO has deposited the award amount which was passed in
the year 2010. It is further indicated that no reason has been
assigned by the petitioners in approaching this Court after a long
lapse of six to seven years. No individual objection by any of the
petitioners was filed indicating the land particulars. In the
acquisition process, highest cost for the lands with 30% solatium
and 12% interest was given to the land owners and there was no
malafide intention on the part of the Government to grab the
7
agricultural land of the farmers. It is further indicated in the
counter affidavit that the petitioners have suppressed material
facts in the writ petition inasmuch as the notification under
section 4(1) of 1894 Act was published in two Odia daily
newspapers i.e. 'Matrubhasa' and 'Utkal Mail' on dated
25.07.2007 and 26.07.2007 respectively and the notification was
published in the village and Panchayat Office on 10.08.2007 and
finally the notification was published in the Odisha Gazette vide
no.1802 dated 29.09.2007. The copies of the newspapers were
annexed to the counter affidavit. It is further mentioned in the
counter affidavit that no objection under section 5-A of 1894 Act
was made within the statutory period of thirty days from the
date of publication of the notification under section 4(1) and the
representation under Annexure-2 has been created for the
purpose of this writ petition and the signature of the recipient of
such representation is a fabricated one. Most of the signatories
to such representation have already received their due
compensation. Specific stand was taken in the counter affidavit
that out of sixty nine signatures in the representation, ten of
them are not land losers and numbers of signatures were
repeated and fifteen out of the sixty nine signatories have
already received their compensation. Specific date wise
8
publication of notification under section 4(1) of 1894 Act was
indicated so also the publication of declaration under section
6(1). It is mentioned that the last publication of the notification
under section 4(1) was made in the Odisha Extraordinary
Gazette vide no.1802 dated 29.09.2007 and the declaration
under section 6(1) was made by the Government in Revenue and
Disaster Management Department vide no.35278 dated
14.08.2008 which is within statutory period of one year. It is
further indicated that the declaration under section 6(1) was
published on dated 27.09.2008 in two daily Odia newspaper
namely 'Bharat Darsan' and 'Sambad Kalika' and copies of such
publication were annexed to the counter affidavit. It is further
mentioned that the land have been acquired by the Government
of Odisha for IDCO, a corporation owned by the Government for
establishment of industries which is as per section 3(f)(iv) of
1894 Act which speaks that 'public purpose' includes the
provision of land for a corporation owned or controlled by the
State. A further stand was taken that the Government of Odisha
signed an MOU with Vedanta Aluminium Ltd. (now Vedanta Ltd.)
for establishment of Aluminium Smelter and Captive Power Plant
in the district of Jharsuguda, Odisha and the land was to be
provided through IDCO on long term lease basis as industrial
9
development was to be expedited in the interest of the State.
The land cost and other administrative charges were deposited
by the IDCO and the action of the opp. party-Government
authorities was fair, bonafide and in the public interest. It is
further indicated that the land was handed over to IDCO as per
possession letter dated 23.06.2015 and deed dated 21.01.2017
after compliance of due process under Land Acquisition Act.
5. The opp. party no.4 IDCO filed counter affidavit
contending therein that it is a State owned statutory corporation
and the object under the statute i.e. Odisha Industrial
Infrastructure Development Act, 1980 (Orissa Act 1 of 1981), is
to secure and assist rapid industrialization in the State including
identification of land for industry and facilitation to the
entrepreneur to establish industry. IDCO filed requisition for
acquisition of private land measuring Ac.200.98 dec. in village
Siriapali with the Special Land Acquisition Officer, Jharsuguda
(opp. party no.3) and the opp. party no.3 requested IDCO to
deposit money towards payment of establishment cost for
acquisition of private land and accordingly, IDCO deposited the
same on 15.12.2006 with the opp. party no.3 whereafter the
notification under 4(1) and declaration under section 6(1) of
1894 Act were made in due time. It is further indicated that
10
when the opp. party no.3 requested IDCO to deposit a sum of
Rs.9,63,41,542/-, such deposit was made on 24.11.2009 under
intimation to the Collector, Jharsuguda. The opp. party no.5
Vedanta Aluminium Ltd. submitted its withdrawal proposal for
land measuring Ac.15.82 dec. out of Ac.200.93 dec. and
accordingly a request in that respect was made by IDCO to the
opp. paty no.3 which was ultimately done by the Government
and possession of Ac.185.11 dec. of land was handed over to
IDCO on 23.06.2015. The A.D.M., Jharsuguda in its letter dated
07.12.2015 requested IDCO for reflection of the revised
estimates for the acquired area of Ac.185.11 dec. in village
Siriapali in the lease deed to be executed between the Collector,
Jharsuguda with IDCO and accordingly, the required papers were
submitted before the Collector for execution of the lease deed. It
is further indicated that the allegations made by the petitioners
are baseless and fabricated.
6. The opp. party no.5 Vedanta Aluminium Ltd. filed
counter affidavit wherein it is indicated that the opp. party no.5
is not a 'State' within the meaning of Article 12 of the
Constitution of India and hence not amenable to writ jurisdiction
of this Court. Averments were taken reiterating the stand taken
by the Government that the notification under section 4(1) was
11
published in two regional daily newspapers and declaration under
section 6(1) was published within one year from the date of
notification under section 4(1) of 1894 Act. The land losers
except a few have already received their compensation and
others are not coming up to receive the compensation even after
intimation/reminder by the authority. The stand taken by the
State Government relating to publication of declaration in the
daily newspapers under section 6(1) was also reiterated. It is
further stated that the land acquisition for IDCO was for public
purpose and IDCO has paid the cost assessed by the Special
Land Acquisition Officer and the villagers have received their
compensation. The Government of Odisha and Vedanta entered
into an MOU for setting up Aluminium Smelter with Captive
Power Plant in the district of Jharsuguda on 04.04.2007 and the
Government agreed for allotment of the required land for setting
of the project to IDCO. The Government conferred the
responsibility to IDCO for allotment of land to the project as the
IDCO has been made the nodal agency by the State of Odisha
for acquisition of land for setting up industrial project in Odisha.
After acquisition of land, the Collector, Jharsuguda transferred
the ownership of land to IDCO under a long term lease for ninety
nine years and on getting possession of the land, IDCO
12
transferred the ownership of the land to Vedanta under a lease
agreement for ninety years following necessary process. It is
pointed out that when the award was passed in the land
acquisition proceeding on 30.06.2010 and compensation has
been received by the villagers to a large extent and there is
inordinate delay in filing the writ petition and there are disputed
questions of facts, the writ petition should be dismissed.
7. A rejoinder affidavit was filed on behalf of the
petitioners to the counter affidavit filed by the opp. parties
elaborating as to how the declaration under section 6(1) was
made after expiry of the prescribed period of the publication of
the notification under section 4(1). Reliance was placed on the
audit report (G & SS) Volume 3 for the year ending March 2012
of the Government of Odisha which indicated that the IDCO was
acquiring land for private promoters and the entire cost of
acquisition was borne by the concerned promoters. It is further
indicated that 95% of the land acquired are fertile agricultural
land and their status were reflected in the record of rights. A
further stand was taken that after notification under section 4(1)
on dated 10.08.2007, the objection dated 05.09.2007 was sent
to all the authorities including the opp. party no.3 by registered
post and it was also personally received by the opp. party no.3.
13
It is further stated that when there was objection relating to the
acquisition of land, the opp. party no.6, Sub-Collector,
Jharsuguda issued notice to the villagers and a public meeting
was held on 16.07.2011 in the presence of IDCO Authorities,
Vedanta Authorities, Tahasildar, Jharsuguda and Special Land
Acquisition Officer and the villagers stated about their objection
under section 5-A but the authorities maintained indifferent
attitude towards the grievances of the petitioners and they were
unmindful about the livelihood of the petitioners which was
affected due to such acquisition of land. Disputing the
publications of the notification under section 4(1) and declaration
under section 6(1) in the newspapers, a further stand was taken
that if the ash pond plant is installed in the village, there would
be serious environmental pollution causing health hazard to the
mankind as well as the animals.
8. Mr. A.K. Nanda, learned counsel appearing for the
petitioners contended that the acquisition of land of the
petitioners for 'public purpose' as reflected in the notification
under section 4(1) and declaration under section 6(1) of 1894
Act is completely false and contrary to the records. The
Memorandum of Understanding under Annexure-6 between the
Govt. of Odisha and the opp. party no.5 would establish that the
14
land was acquired to be handed over to a private company i.e.
opp. party no.5 and the cost of the land was to be paid by the
opp. party no.5 to the IDCO/Revenue Authorities which in turn to
be disbursed to the land owners and therefore, the project
involving L.A. Case No.7 of 2006 in village Siriapali is a private
project. He placed reliance on the report of CAG wherein it is
indicated that acquisition of land for public purpose does not
include acquisition of land for companies. Since IDCO was
acquiring the land for a private promoter and the cost of
acquisition was borne by the concerned promoter, it cannot be
held to be an acquisition for 'public purpose'. Therefore, the
action of the Government is a fraud on the power conferred upon
it by the 1894 Act and thus the proceeding is liable to be
quashed. Reliance was placed on the decision of the Hon'ble
Supreme Court in case of Devinder Singh -Vrs.- State of
Punjab reported in A.I.R. 2008 S.C. 261. It is further argued
that the last date of publication of the notification under section
4(1) was 29.09.2007 and the last date of declaration under
section 6(1) was 10.06.2009 and as such the declaration was
made one year and nine months after the notification which is
beyond the mandatory period of one year and therefore, the land
acquisition proceeding is vitiated. Reliance was placed in cases of
15
Ashok Kumar -Vrs.- State of Haryana reported in A.I.R.
2007 S.C. 1411 and Devender Kumar -Vrs.- State of U.P.
reported in J.T. 2011 (9) S.C. 390. It was further argued that
sections 4(1) and 6(2) of 1894 Act mandate that the notification
and the declaration respectively shall be published in two daily
newspapers circulating in the locality in which the land is
situated and at least one of such publication shall be in the
regional language but the opp. party no.3 under Annexure-5
disclosed that the copies of the newspapers in the said
proceeding were not available in the office and therefore, such
publications as alleged are completely false. Highlighting the
provision under section 5-A of 1894 Act, it was argued that when
the petitioners submitted their objection under Annexure-2 which
was received in the office of the opp. party no.2 and copies of
the same were also sent to different authorities including the
opp. party no.3 by registered post, opportunity of hearing should
have been provided to the petitioners and for non-compliance of
the mandatory provisions, the proceeding is vitiated in the eye of
law. Reliance was placed in case of Surinder Singh Brar -Vrs.-
Union of India reported in (2013) 1 Supreme Court Cases
403. Repeated representations/objections were stated to have
been submitted by the petitioners to the authorities to drop the
16
land acquisition proceeding and the petitioners are continuing in
cultivating possession of the case lands till date and since there
is no change in the status of land, the writ petition cannot be
dismissed on the ground of delay. Reliance was placed on the
decision of the Hon'ble Supreme Court in case of Vyalikaval
House Building Co-op. Society -Vrs.- V. Chandrappa
reported in A.I.R. 2007 S.C. 1151.
Mr. Rajat Kumar Rath, learned Senior Advocate
appearing for the opp. party no.5 on the other hand raised
preliminary objection to the maintainability of the writ petition
contending that the self-same relief was sought for by some of
the petitioners i.e. petitioners nos.2, 4, 6 and 11 in W.P.(C)
No.2132 of 2010 which was disposed of on 15.11.2016 and
direction was issued to the petitioners of such writ application to
approach the Special Land Acquisition Officer, Jharsuguda for
getting the compensation amount. During pendency of such writ
petition, this writ application has been filed suppressing the
earlier filing and therefore, on account of suppression of material
fact, the writ petition is liable to be dismissed. Reliance was
placed in case of K.D. Sharma -Vrs.- SAIL reported in
(2008) 12 Supreme Court Cases 481. It was argued that
declaration under section 6(1) of 1894 Act was made on
17
14.08.2008 as per Annexure-3 which is within one year from the
last date of notification under section 4(1) which was published
in the Odisha Gazette on 29.09.2007. Reliance was placed in
case of Urban Improvement Trust -Vrs.- Bheru Lal
reported in (2002) 7 Supreme Court Cases 712. It was
argued that no objection under section 5-A of 1894 Act has been
filed and Annexure-2 is a forged document and therefore, the
question of giving opportunity of hearing to the petitioners does
not arise and when notification under section 6(1) has already
been made and award has already been published, the
proceeding cannot be challenged at this stage. Reliance was
placed in case of State of Tamil Nadu -Vrs.- L. Krishnan
reported in (1996) 1 Supreme Court Cases 250, Andhra
Pradesh Industrial Infrastructure Corpn. Ltd. -Vrs.-
Chinthamaneni Narasimha Rao reported in (2012) 12
Supreme Court Cases 797 and Municipal Corporation -Vrs.-
I.D.I. Co. Pvt. Ltd. reported in (1996) 11 Supreme Court
Cases 501. It was further argued that since the notification
under section 4(1) was made in the year 2007 and declaration
under section 6(1) was made in the year 2008 and the first writ
application filed in the year 2010, this second writ application
filed in the year 2014 is not maintainable on the ground of delay.
18
Reliance was placed in case of Swaika Properties (p) Ltd.
-Vrs.- State of Rajasthan reported in (2008) 4 Supreme
Court Cases 695. While concluding his argument, Mr. Rath
highlighted that the acquired land was for the 'public purpose' as
a power plant is going to function and the power generated is to
be utilized in the interest of general public and therefore, this
Court should not interfere with such a project.
Mr. K.K. Mishra, learned Addl. Govt. Advocate
supported the contentions raised by Mr. Rath and placed the
counter affidavit and contended that all the procedural
formalities as envisaged under Part-II of the 1894 Act were duly
followed and since the petitioners have not approached this
Court with clean hands and knocked at the portals of this Court
at a belated stage, the writ petition should be dismissed.
Reliance was placed in case of Sawaran Lata -Vrs.- State of
Haryana reported in (2010) 4 Supreme Court Cases 532 on
the point of delay.
Mr. Jaganath Patnaik, learned Senior Advocate
appearing on behalf of the opp. party no.4 filed a short note of
submission supporting the stand taken by the opp. party no.5.
9. Adverting to the rival contentions raised at the bar,
the following points are required to be adjudicated:-
19
(i) Whether the notification under section 4(1)
and declaration under section 6(1) of 1894 Act
relating to acquisition of land of the petitioners in
Mouza Siriapali were made for 'public purpose' or
there was any malafideness in the act of the opposite
parties?
(ii) Whether the declaration under section 6(1) of
1894 Act was made within stipulated period after the
notification under section 4(1)?
(iii) Whether the notification and the declaration
relating to acquisition of land were published in the
daily newspapers as prescribed under the statute?
(iv) Whether objection relating to acquisition of
land was filed under section 5-A of 1894 Act by the
petitioners and if so, whether opportunity of hearing
has been afforded to the objectors?
(v) Whether the writ petition is liable to be
dismissed on the ground of delay and suppression of
facts?
Discussion on point no.(i)
10. Mr. Nanda contended that the land in Mouza Siriapali
was not acquired for any 'public purpose' but it was for a private
20
project of the opposite party no.5. He has relied upon the
Memorandum of Understanding under Annexure-6 between the
Governor of Orissa and the opposite party no.5, Vedanta
Aluminium Ltd., a company registered under the Companies Act,
1956. There is no dispute that as per clause (A) of the MOU, the
cost of the land and properties (if standing thereon) etc. is to be
paid by the opposite party no.5 to IDCO or the Revenue
Authorities.
In the counter affidavit filed by the State, a specific
stand has been taken that the land has been acquired by the
Govt. of Odisha for IDCO, a corporation owned by the State
Govt. for establishment of industries and Govt. Odisha signed an
MOU with Vedanta Aluminium Ltd. for establishment of
Aluminium Smelter and Captive Power Plant in the district of
Jharsuguda, Odisha. The IDCO has deposited the cost before the
authority as assessed by the Special Land Acquisition Officer.
The expression 'public purpose' as per section
3(f)(iv) includes the provision of land for a corporation owned or
controlled by the State. There is no dispute that IDCO is wholly
owned and controlled corporation of Govt. of Odisha and it has
been made nodal agency for acquisition of land for setting up
industrial projects in Odisha. It appears that after acquisition of
21
land, the Collector, Jharsuguda transferred the ownership of land
to IDCO under a long term lease for ninety nine years and on
getting possession of the land, IDCO transferred the ownership
of land to Vedanta under a long term lease arrangement.
In case of Sooraram Pratap Reddy -Vrs.- District
Collector reported in (2008) 9 Supreme Court Cases 552
while analysing the expression 'public purpose' as defined under
clause (f) of section 3 of 1894 Act, it is held that the expression
'public purpose' is of very wide amplitude. It is merely illustrative
and not exhaustive. The inclusive definition does not restrict its
ambit and scope. The expression is incapable of precise and
comprehensive definition. It is used in a generic sense of
including any purpose wherein even a fraction of the community
may be interested or by which it may be benefited. A 'public
purpose' is thus wider than a 'public necessity'. Purpose is more
pervasive than urgency. That which one sets before him to
accomplish, an end, intention, aim, object, plan or project, is
purpose. A need or necessity, on the other hand, is urgent,
unavoidable and compulsive. Public purpose should be liberally
construed not whittled down by logomachies.
The notification under Annexure-1 and the
declaration under Annexure-3 clearly indicate that for the public
22
purpose, the land is to be acquired in Mouza Siriapali for
establishment of industry by IDCO. As per the policy decision of
the Government, the land acquisition proceeding was completed
and the land acquisition for IDCO was for a public purpose and
the policy decision of the Government has not been challenged.
It is the settled proposition of law that in absence of illegality or
violation of law, a Court of law will not interfere in policy matters
of the Government.
Section 4(1) of 1894 Act expressly authorises the
appropriate Government to issue the preliminary notification for
acquisition of land likely to be needed for any public purpose or
'for a company'. Likewise section 6(1) declares that when the
appropriate Government is satisfied that a particular land is
needed for a public purpose or 'for a company', a declaration
shall be made to that effect. It is thus clear that the appropriate
Government may acquire land if such land is needed for any
public purpose or 'for a company'. If it is so, acquisition will be
governed by Part-II of 1894 Act and the procedure laid down in
the said Part has to be followed. Part-VII, on the other hand,
deals with acquisition of land for companies. In such cases,
previous consent of appropriate Government and execution of
agreement for transfer of land are necessary and procedure laid
23
down in that Part is sine qua non for the acquisition. 1894 Act
contemplates acquisition for (i) public purse and (ii) for a
company; thus, conveying the idea that acquisition for a
company, is not for a public purpose. The purposes of public
utility, referred to in sections 40 and 41 of 1894 Act are akin to
'public purpose'. Hence, acquisition of land for a 'public purpose'
as also acquisition 'for a company' are governed by consideration
of public utility. Procedure for the two kinds of acquisition is
different and if it is for a company, then acquisition has to be
effected in accordance with the procedure laid down in part-VII.
Not only Annexures 1 and 3 indicate the public purpose behind
the acquisition of land but also the Memorandum of
Understanding under Anneuxre-6 and the counter filed by the
opposite party no.5 indicate that the opposite party no.5
required the land for the purpose of setting up Aluminum
Smelter and Captive Power Plant. Establishment of such an
industry in Odisha will speed up the developmental activities of
the State with enlightenment of employment. It is stated that
such establishment is inevitable for the prosperity of the State
and it is the policy decision of the Government and also in the
public interest. Economy of a nation and its development
depends upon the growth of industrialization. Industries serve
24
the livelihood of the citizens. Poverty and unemployment get
eradicated through industrialization. Whether the acquisition is
for 'public purpose' or not, prima facie Government is the best
Judge. Normally, in such matters, a writ Court should not
interfere by substituting its judgment for the judgment of the
Government.
Mr. Nanda relied upon the decision of the Hon'ble
Supreme Court in case of Devinder Singh (Supra) wherein it is
held that when an order is passed without jurisdiction, it
amounts to colourable exercise of power. Formation of opinion
must precede application of mind. The authorities must act
within the four-corners of the statute. A statutory authority is
bound by the procedure laid down in the statute. We do not find
in the case in hand that there is any lack of jurisdiction with the
authorities who have passed the impugned notification under
section 4(1) or made declaration under section 6(1) of 1894 Act.
The procedural aspect as laid down under Part-II of the Act has
been duly followed.
Therefore, we are not inclined to accept the
submission made by the learned counsel for the petitioners that
no 'public purpose' is involved in the acquisition of land by the
Government for establishment of industries by the IDCO in
25
mouza Siriapali or there is any malafideness in the act of the
opp. parties.
Discussion on point no.(ii)
11. Section 6 of 1894 Act deals with declaration that the
land is required for a public purpose, or for a company. Such a
declaration is to be made by the appropriate Government only
after considering the report, if any made under section 5-A. The
proviso (ii) to section 6(1) indicates that no declaration in
respect of any particular land covered by a notification under
section 4(1) shall be published after the expiry of one year from
the date of publication of the notification.
Section 4(1) of 1894 Act lays down that whenever it
appears to the appropriate Government that land in any locality
is needed or is likely to be needed for any public purpose or for a
company, then notification to that effect is required to be
published in (i) the official gazette; (ii) two daily newspapers
having circulation in that locality of which, one shall be in the
regional language; and (iii) it is also incumbent on the part of
the Collector to cause public notice of the substance of such
notification to be given at convenient places in the locality . It is
relevant to mention that the last of the dates of such publication
and the giving of such public notice is treated as the date of
26
publication of the notification. The purpose of publication of the
notification is two-fold, first, to ensure that adequate publicity is
given so that land owners and persons interested will have an
opportunity to file their objections under section 5-A of the Act,
and second, to give the land owners/occupants a notice that it
shall be lawful for any officer authorized by the Government to
carry out the activities enumerated in sub-section (2) of section
4 of the Act (Ref:-V.K.M. Kattha Industries Pvt. Ltd. -Vrs.-
State of Haryana reported in A.I.R. 2013 S.C. 3557).
The materials available on record indicates, as per
Anneuxre-1 that the notification under section 4(1) was issued
on 04.07.2007 and apart from publication in the newspapers, it
was published in Mouza Siriapali for public notice on 10.08.2007
and the notification was finally published in Odisha Gazette vide
No.1802 dated 29.09.2007. Since the last of the dates of such
publication and giving of such public notice is to be treated as
the date of publication of the notification, we hold that the date
of publication of such notification under section 4(1) of 1894 Act
is 29.09.2007.
The words "publish" and "from the date of publication
of the notification" occurring in proviso (ii) to section 6(1) of
1894 Act refer to the publication of section 4(1) notification and
27
have no reference to the publication of any notification under
section 6. Under section 6(1), it is only a declaration which is
required to be made, the time limit being within one year of the
publication of section 4(1) notification. The main purpose for the
issuance of declaration under section 6 is provided by sub-
section (3), that the declaration shall be conclusive evidence that
the land is needed, inter alia, for a public purpose and after the
making of the declaration, the appropriate Government may
acquire the land in the manner provided by the Act. Sub-section
(2) requires the declaration to be published in the Official
Gazettee and in two daily newspapers circulating in the locality in
which the land is situated and in addition thereto, the Collector is
also required to cause public notice of the substance of the
declaration to be given in the convenient places in the said
locality. Sub-section (2) of section 6 does not prescribe any time
limit within which the declaration made under section 6(1) is to
be published. It is well known that after an order or declaration
is made, there can be a time gap between the making of the
order or a declaration and its publication in the Official Gazette.
Whereas the time limit for the making a declaration is provided
under section 6(1), the legislature advisedly did not provide for
28
any such time limit in respect of steps required to be taken
under sub-section (2) of section 6.
In case of Devender Kumar Tyagi (Supra), it is
held that the notification under section 4 has to be published in
the manner laid down therein. As against this, under section 6, a
declaration has to be first made and that declaration is then to
be published in the manner provided in section 6(2) of the Land
Acquisition Act. Also, the proviso (ii) to section 6(1) lays down a
time-limit within which declaration has to be made. The said
proviso (ii) significantly only provides a time-limit for a
declaration and not for publication as it has been incorporated in
sub-section (1) of section 6 of the Land Acquisition Act.
If the contention of Mr. Nanda, learned counsel for
the petitioners that the last of the dates of such declaration
through publication is to be accepted as the relevant date for the
purpose of proviso (ii) to section 6(1) of 1894 Act then the
effect would be that not only the declaration would have to be
made within the time prescribed under the proviso(ii) to section
6(1) but all other steps, like publication in the daily newspapers
and the Collector causing public notice of the declaration to be
given at convenient places in the locality, must also be
completed within a period of one year of section 4(1)
29
notification. This could certainly not be a consequence
contemplated by the legislature. The purpose of section 6
notification being to give a final declaration with regard to the
need of the land for public purpose, the interest of the land
owners was sufficiently safeguarded with the requirement of the
making of the declaration under section 6(1) within a prescribed
period. It is difficult for us to read into sub-section (2), the
provisions of the proviso (ii) to section 6(1) which relates to the
time limit for making a declaration from the date of publication
of notification under section 4. (Ref:- S.H. Rangappa -Vrs.-
State of Karnataka : A.I.R. 2001 S.C. 3863).
In the case in hand, the declaration under section
6(1) was made on 14.08.2008 as per Annexure-3. Though it was
published subsequently in the Extraordinary Gazette of the State
Government and two daily newspapers and public notice of such
declaration was also made after the declaration under Annexure-
3 but we are of the view that the relevant date of declaration for
the purpose of the proviso (ii) to section 6(1) is 14.08.2008. As
we have already hold that the date of publication of the
notification under section 4(1) was 29.09.2007, since declaration
under section 6(1) was made on 14.08.2008, it is within the
prescribed period of one year.
30
The decision cited by the learned counsel for the
petitioner in case of Ashok Kumar -Vrs.- State of Haryana
reported in A.I.R. 2007 S.C. 1411 states that the proviso
appended to sub-section (1) of section 6 is in the negative term.
It is, therefore, mandatory in nature. Any declaration made after
the expiry of one year from the date of publication of the
notification under sub section (1) of section 4 would be void and
of no effect. An enabling provision has been made by reason of
the explanation appended thereto, but the same was done only
for the purpose of extending the period of limitation and not for
any other purpose. The purport and object of the provisions of
the Act and in particular the proviso which has been inserted by
Act 68 of 1984 and which came into force w.e.f. 24.09.1984
must be given its full effect. The said provision was inserted for
the benefit of the owners of the land.
The decision relied upon by Mr. Rath in case of
Urban Improvement Trust -Vrs.- Bheru Lal reported in
(2002) 7 Supreme Court Cases 712 states that section 6(1)
does not require that such declaration could not be published in
the Official Gazette after expiry of one year from the date of
publication of the notification under section 4(1). Time-limit of
one year is prescribed to a declaration to be made that land is
31
needed for a public purpose under the signature of a Secretary
or authorised officer to such Government.
Therefore, the contention of the learned counsel for
the petitioners that the declaration under section 6(1) was made
beyond the prescribed period from the date of publication of the
notification under section 4(1) is baseless and cannot be
accepted.
Discussion on point no.(iii)
12. Mr. Nanda, learned counsel for the petitioners
contended that there was no paper publication as required under
section 4(1) and 6(2) of 1894 Act is difficult to be accepted.
In the writ petition, in paragraph no.3, it is
mentioned that there was no newspaper publication in the
petitioners' village/locality in respect of the notification. In the
rejoinder affidavit dated 10.04.2018, it is mentioned that the
report obtained under the RTI Act under Annexure 5 indicates
that no newspaper was available publishing 4(1) notification and
6(1) declaration. It is further mentioned that the newspapers like
'Matrubhasa' and 'Utkal Mail' are not at all in circulation in the
village of the petitioners and the publication of 6(1) notification
in newspapers like 'Bharat Darshan' and 'Sambad Kalika' is a
false and fabricated story.
32
The counter filed by the State Government clearly
indicates that the notification under section 4(1) was published
on 25.07.2007 and 26.07.2007 in two daily Oriya newspapers
namely 'Matrubhasa' and 'Utkal Mail' and the copies of the
newspapers were annexed as Annexure-A/1 and A/2 to the
counter affidavit. Similarly, it is mentioned that the declaration
under section 6(1) was published on 27.09.2008 in two Odia
newspapers namely 'Bharat Darshan' and 'Sambad Kalika' and
the copy of the news paper is annexed as Annexure- B.
In view of the stand taken by the State Government
in the counter affidavit that there has been paper publications in
accordance with the procedure prescribed under 1894 Act and
after going through the paper publications annexed to the
counter affidavit and since disputed questions of facts cannot be
adjudicated in the writ petition, we are unable to accept the
contention raised by Mr. Nanda that there was no paper
publication of the notification and the declaration in the two daily
newspapers circulating in the locality.
Discussion on point no.(iv)
13. Mr. Nanda, learned counsel for the petitioners
contended that the petitioners submitted their objection under
Annexure-2 on 05.09.2007 objecting to the acquisition of land in
33
their locality but no opportunity of hearing was given to the
petitioners which is mandatory in view of section 5-A of 1894 Act
and therefore, the proceeding should be quashed. He relied
upon a decision of the Hon'ble Supreme Court in case of
Surinder Singh Brar (supra) wherein it was held that section 5-
A embodies the most important dimension of the rules of natural
justice. What needs to be emphasized is that hearing required to
be given under section 5-A (2) to a person who is sought to be
deprived of his land and who has filed objection under section 5-
A(1) must be effective and not an empty formality. The Collector
who is enjoined with the task of hearing the objectors has the
freedom of making further enquiry as he may think necessary. In
either eventuality, he has to make report in respect of the land
notified under section 4(1) or make different reports in respect
of different parcels of such land to the appropriate Government
containing his recommendations on the objections and submit
the same to the appropriate Government along with the record
of the proceedings held by him for the latter's decision. The
appropriate Government is obliged to consider the report, if any,
made under section 5-A (2) and then record its satisfaction that
the particular land is needed for a public purpose. This exercise
culminates into making a decision that the land is needed for a
34
public purpose. Any violation of the substantive right of the land
owners and/or other interested persons to file objections or
denial of opportunity of personal hearing to the objector(s)
vitiates the recommendations made by the Collector and the
decision taken by the appropriate Government on such
recommendations. The recommendations made by the Collector
without duly considering the objections filed under section 5-A(1)
and submissions made at the hearing given under section 5-
A(2) or failure of the appropriate Government to take objective
decision on such objections in the light of recommendations
made by the Collector will denude the decision of the appropriate
Government of statutory finality.
In the writ petition in paragraph 3, it is mentioned
that when the petitioners and similarly affected farmers
submitted representation to the opposite party no.2 to drop the
land acquisition proceeding in respect of their agricultural lands
which is annexed as Annexure-2, no opportunity of hearing has
been afforded to them. Annexure-2 is dated 05.09.2007 and
someone seems to have received the copy on the very day. The
State Government in its counter affidavit has specifically
mentioned that no objection has been received within stipulated
period after publication of notification under section 4(1) as
35
prescribed under law and the document/representation under
Annexure-2 has been created with a sole intention to be annexed
to the writ petition and the petitioners have also fabricated the
signature on the receipt part of the representation and there is
no record of receipt or filing of such document in the office of the
Special Land Acquisition Officer.
Being cornered with such a stand taken by the State
Government, the petitioners in their rejoinder affidavit have
stated in paragraph 5 that after the public notice of 4(1)
notification vide Annexure-1, they submitted their objection on
05.09.2007 which was not only personally received by the
Special Land Acquisition Officer but also copy of the same was
sent to all the authorities including opp. party no.3 by registered
post and the copies of the postal receipts were annexed. In the
written note of submission filed by the petitioners, it is stated
that the petitioners submitted their objection under Annexure-2
on 05.09.2007 which was received by the office of opp. party
no.2 and on the same day, the petitioners also sent
representation/objection to all other authorities including opp.
party no.3 by registered post.
Therefore, it appears that inconsistent stand has
been taken by the petitioners relating to filing of written
36
objection to the acquisition of the land in their locality. The
submission of objection to different authorities including opp.
party no.3 by registered post has not been averred in the writ
petition. A stand has been taken in the rejoinder affidavit that
the objection dated 05.09.2007 was personally received by the
Special Land Acquisition Officer (opposite party no.3) whereas in
the note of submission, it is stated that the objection under
Annexure-2 was submitted on 05.09.2007 which was received in
the office of opposite party no.2. The Special Land Acquisition
Officer filing a counter affidavit has denied about such aspect. In
the counter affidavit, it has also been pointed out that out of
sixty nine signatories in the representation under Annexure-2,
ten are not land losers as their land was not considered for
acquisition and some of the signatures have been repeated in
different orders and in different languages.
Since disputed questions of facts cannot be
adjudicated in the writ petition and the stand taken by the
petitioners relating to filing of objection under section 5-A of
1894 Act is inconsistent, we are of the view that it cannot be
said that any objection was filed by the petitioners and therefore,
the question of giving opportunity of hearing to them does not
arise.
37
Discussion on point no.(v)
14. The notification under section 4(1) was made in the
year 2007 and the declaration under section 6(1) was made in
the year 2008. It appears from the disposed of writ petition i.e.
W.P.(C) No.2132 of 2010 that the petitioners nos.2, 4, 6 and 11
along with others filed such petition earlier challenging the self-
same notification under section 4(1). The said writ petition was
disposed of on 15.11.2016 as some of the petitioners received
compensation amount and others were given liberty to approach
the Special Land Acquisition Officer, Jharsuguda for getting the
compensation amount. In the present writ petition, the filing of
the earlier writ petition has not been mentioned.
In case of K.D. Sharma -Vrs.- SAIL reported in
(2008)12 Supreme Court Cases 481, it is held that the party
who invokes the extraordinary jurisdiction of the Supreme Court
under Article 32 or of a High Court under Article 226 of the
Constitution is supposed to be truthful, frank and open. He must
disclose all material facts without any reservation even if those
are against him. He cannot be allowed to play "hide and seek" or
to "pick and choose" the facts he likes to disclose and to
suppress (keep back) or not to disclose (conceal) other facts.
The very basis of the writ jurisdiction rests in disclosure of true
38
and complete (correct) facts. If material facts are suppressed or
distorted, the very functioning of the writ Courts and exercise
would become impossible. The petitioner must disclose all the
facts having a bearing on the relief sought without any
qualification. This is because "the Court knows law but not facts".
Any one who takes recourse to method of
suppression in a Court of law, is, actuality, playing fraud with the
Court, and the maxim suppressio veri, expression falsi i.e.
suppression of the truth is equivalent to the expression of
falsehood, gets attracted. (Ref:- (2013) 55 Orissa Criminal
Reports (SC) 881, Moti Lal -Vrs.- Prem Prakash).
We are of the humble view that at the time of filing
this writ petition, the petitioners have suppressed about the filing
of the earlier writ petition which was subjudiced at that time.
Moreover, this writ petition which was filed in 2014
which is after six years of the declaration made under section 6
and after the award was published.
In case of State of Tamil Nadu -Vrs.- L. Krishnan
reported in (1996) 1 Supreme Court Cases 250, it is held
that when the declarations under section 6 were made in the
year 1978 and the writ petitions were filed sometime in the year
39
1982-83 when the awards were about to be passed, the laches
of this nature was held to be fatal to the writ petitioners.
In case of Andhra Pradesh Industrial
Infrastructure Corpn. Ltd. -Vrs.- Chinthamaneni
Narasimha Rao reported in (2012) 12 Supreme Court
Cases 797, it was held that the declaration under section 6 of
the Act was made on 07.08.1996 and the award was made on
07.01.1998 and a petition challenging the validity of the
declaration under section 6 of the Act was filed in November
1998 which were held to be a belated stage and it was further
held that if the land owners were really aggrieved under section
6 of the Act, they ought to have challenged the same
immediately after the declaration under section 6 was made and
there was no reason for the land owners to wait a few years for
challenging the declaration and for that reason the Hon'ble Court
did not interfere with the acquisition proceedings.
In case of Municipal Corporation -Vrs.- I.D.I. Co.
Pvt. Ltd. reported in (1996) 11 Supreme Court Cases 501,
it is held that when there is inordinate delay in filing the writ
petition and when all steps taken in the acquisition proceeding
have become final, the Court should be loath to quash the
notifications. When the award was passed and possession was
40
taken, the Court should not exercise its power to quash the
award.
In case of Swaika Properties (P) Ltd. -Vrs.- State
of Rajasthan reported in (2008) 4 Supreme Court Cases
695, it is held that a writ petition challenging the notification for
acquisition of land, if filed after the possession having been
taken, is not maintainable.
In case of Sawaran Lata -Vrs.- State of Haryana
reported in (2010) 4 Supreme Court Cases 532, it is held
that the when a person challenges section 4 notification on any
ground, it should be challenged within a reasonable period, and if
the acquisition is challenged at a belated stage, the petition
deserves to be dismissed only on this count.
Though Mr. Nanda placed reliance in case of
Vyalikaval House Building Co-op. Society (supra), wherein it
is held that when the acquisition has been found to be totally
malafide and not for bonafide purpose, the ground of delay and
acquiescence has no substance but we do not find any
malfideness in the conduct of the opp. parties in acquiring the
land in mouza Siriapali for public purpose.
It appears that after the declaration under section
6(1) was made in the year 2008, award was passed in 2010. The
41
compensation amount has been received by the villagers of
mouza Siriapali to a large extent. The possession of Ac.185.11
dec. of land was handed over to IDCO on 23.06.2015 and deed
was executed on 21.01.2017. When the petitioners have
approached this Court six years after the declaration under
section 6(1), we are of the view that the writ petition suffers not
only on the ground of laches but also on the ground of
suppression of material facts.
15. In view of the foregoing discussions, we find no merit
in the writ petition which is accordingly dismissed. The
petitioners whose land have been acquired and not received the
compensation amount as yet are at liberty to approach the
opposite party no.3 Special Land Acquisition Officer, Jharsuguda
for getting the compensation amount. No costs.
.......................
S. K. Sahoo, J.
S. Panda, J. I agree.
...................... S. Panda, J.
Orissa High Court, Cuttack The 11th January 2019/Pravakar/Kabita/Sisir/Sukanta