Orissa High Court
Pandav Samal & Two Others vs State Of Odisha & Six Others. ...... ... on 20 August, 2013
Author: C. Nagappan
Bench: C. Nagappan
THE HIGH COURT OF ORISSA : CUTTACK.
W.P.(C) No. 16477 of 2012
In the matter of an application under Article 226 of the Constitution of
India.
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Pandav Samal & two others ...... Petitioners.
-Versus-
State of Odisha & six others. ...... Opposite parties.
For petitioners : Mr. Asim Amitav Das, Mr. Deepak Kumar,
Mr. P.K. Mishra & D.Dash.
For opposite parties : Mr. Asok Mahanty, Advocate General,
(for O.P. Nos. 1 to 4).
M/s. S.P. Mohanty & M. Barik (for O.P. No.5)
Mr. J. Patnaik, Sr. Advocate,
B. Mohanty, T.K. Patnaik, A. Patnaik,
Soma Patnaik, R.P. Ray & B.S. Rayaguru
(for O.P. No.6)
Mr. J. Das, Sr. Advocate, Mr. Aditya Narayan
Das, N. Sarkar, K.P. Mishra & E.A. Das
(for O.P. No.7)
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PRESENT ;
THE HONOURABLE CHIEF JUSTICE MR. C. NAGAPPAN
AND
THE HONOURABLE JUSTICE MR. I. MAHANTY
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_
Date of judgment - 20-08-2013
_______________________________________________________________
_
C. Nagappan, C.J. Petitioners, claiming to be the inhabitants of village
Kolathapangi have filed this writ petition by way of Public Interest
Litigation seeking to quash the order of the Collector-opp. Party
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No.3 dated 19.01.2011 under Annexure-5 de-reserving the lands
measuring Ac.36.10 dec. under Khata No. 116 corresponding to
plot No. 167 (part) in Mouza Kolathapangi; and further sought for
declaration that the allotment of the said land in favour of O.P.
No.7-Company is illegal.
2. Briefly, the case of the petitioners is that the O.P.
No.7-Ultra Tech Cement Ltd. signed an MOU with the State
Government, namely, opposite party No.1 on 10.11.2006 for
establishment of 1.5 MTPA Split Cement Grinding Unit at
Khamara Nuagaon and Kolathapangi under Athagarh Tahasil in
the district of Cuttack with project cost of Rs.300 Crores. The
Industrial Promotion and Investment Corporation of Orissa Ltd.
(IPICOL) vide letter dated 09.06.2010 recommended IDCO-O.P.
No.6 that Ac.90.00 of land at the said villages may be alienated in
favour of O.P. No.7 for establishment of the 1.5 MTPA Split cement
grinding unit. Pursuant to said recommendation, O.P. No.6-IDCO
made requisition for alienation of government land measuring
Ac. 36.100 in village Kolathapangi vide letter No. 17611 dated
26.08.2010 for the purpose of establishment of the said industry.
Thereafter, O.P. No.4 initiated a de-reservation case vide Lease
Misc. Case No. 4/2010 under the provisions of Orissa Government
Land Settlement Act, 1962 (in short "the OGLS Act") to de-reserve
the said land and invited public objections by issuing
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proclamation. According to the petitioners, they along with some
other co-villagers filed their written objection stating that cattle
and livestock used to graze in the said Gochar land, the said land
is also used by the villagers for organizing various social functions,
the youth and the children of the village are also using the said
land as play ground, and further setting up of the said industry
will lead to environmental problems. On 08.12.2010 personal
hearing as well as spot inspection was conducted by the
Tahasildar, Athagarh-O.P. No.4 and after completion of the
necessary formalities, the O.P. No.4 overruling the objections, vide
letter dated 18.12.2010 recommended the O.P. No.3 that the
subject land be de-reserved. The Collector-O.P. No.3 by order
dated 19.01.2011 accepted the recommendation of the Tahasildar
and directed for de-reservation of the said land in exercise of power
under Section 3-A of the OGLS Act read with Rule 4 of the OGLS
Rules, 1983 and sanctioned release of the said land in favour of
IDCO and thereafter sanction order was issued. According to the
petitioners, during pendency of the Lease Misc. Case No. 4/2010,
they along with their co-villagers approached the O.P. No.2 by way
of a representation dated 10.11.2010 stating that their case was
not heard in proper manner and their objections were not
appreciated properly. On receipt of the said representation, the
O.P. No.2 directed the Collector, Cuttack-O.P. No.3 to look into the
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matter, however, the said direction of O.P. No.2 was not complied
with.
In the meanwhile, lease deed was executed between
the Collector, Cuttack and IDCO for transfer of 36.100 acres of
land in village Kolathapangi on 18.07.2011 and subsequently the
IDCO-O.P. No.6 allotted the said extent of land in favour of O.P.
No.7-Company vide letter dated 8.8.2011 for establishment of
the said industry and accordingly lease deed also came to be
executed on 19.8.2011 between the IDCO and O.P. No.7. It is
also stated by the petitioners that the State Pollution Control
Board (SPCB), namely, O.P. No.5 has granted consent to O.P.
No.7 for setting up of a Bulk Terminal of capacity 2.0 MTPA
under the relevant provisions of Acts.
3. Petitioners have stated that the subject land is a
communal land and has been kept reserved for common use of
villagers and there is no specific provision for de-reservation of
such land for industrial purpose when industry is set up by a
private company like O.P. No.7 and further the de-reservation of
Gochar land in question has not been made in accordance with
the provisions of the OGLS Act. Therefore, handing over the land
in favour of O.P. No.7 is perverse and illegal and accordingly the
impugned orders are liable to be set aside.
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4. Opposite party Nos. 1 to 4 have filed a common
counter affidavit stating that the orders impugned have been
passed strictly inconsonance with Section 3-A of the OGLS Act and
Rule 4 of the OGLS Rules and there is no illegality in the decision
making process. It is stated that during the public hearing, the
writ petitioners did not make any objection and though some other
villagers filed their objections, the same were considered and
overruled and the de-reservation proceedings for allotment of said
government land to IDCO is proper and legal.
5. Opposite party No.5, namely, State Pollution Control
Board in its counter has stated that after receipt of application
from O.P. No.7 for grant of consent to establish the industrial
unit in question, the proposed site was inspected by the
Scientists of the Board on 10.08.2011 and the report was placed
before the Consent Committee of the Board for consideration and
the Board after considering the inspection report and the
recommendation, vide order dated 01.11.2011 granted consent
in favour of O.P. No.7 to establish the industrial unit subject to
conditions as stipulated therein.
6. Opposite party No.6-IDCO in its counter affidavit
has stated that the Collector, Cuttack has sanctioned lease of
the government land in question in favour of IDCO for
establishment of industries under the provisions of the OGLS Act
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and Rules made thereunder after completion of all the formalities
in accordance with law and subsequently it has allotted the said
land in favour of O.P. No.7 executing lease deed by observing
legal formalities and therefore, the allegations made by the
petitioners are not sustainable. It is further stated that since
there is a provision of appeal under Section 7 of the OGLS Act
against any order made under Section 3 of the Act and the
petitioners have not availed the same, the present writ petition is
not maintainable.
7. Opposite party No.7 has also filed an elaborate
counter affidavit denying the allegations made by the petitioners
and has prayed for dismissal of the writ petition.
8. We have heard the contentions of the learned
counsel for the petitioners as well as respective learned counsel
for opposite parties.
9. The main contention of the learned counsel for the
petitioners is that the opposite parties in utmost disregard to the
provisions of law governing the field has proceeded to de-reserve
the communal lands so as to sub-serve the interests of a private
company, namely, O.P. No.7.
10. Per contra learned Advocate General vehemently
opposed the contentions raised by the petitioners and contended
that the land in question is a government land and de-
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reservation orders have been passed following the procedure
stipulated under the OGLS Act and OGLS Rules and as the
petitioners have not filed any objection during the public hearing
they cannot raise any grievance in this writ petition as there is
no illegality in the decision making process. In support of his
contention, he has placed reliance on a decision of the Hon'ble
Supreme Court in the case of State of Jharkhand & Ors. Vs.
Pakur Jagran Manch & Ors., (2011) 2 SCC 591.
11. Opposite party No.7 was earlier known as M/s. Grasim
Industries Ltd. and it had entered into the MOU with the State
Governmnt i.e. O.P. No.1 for establishment of 1.5 MTPA Split
Cement Grinding Unit at Khamara Nuagaon and Kolathapangi
under Athagarh Tahasil in the district of Cuttack with project cost
of Rs.300 Crores. IPICOL vide its letter dated 09.06.2010
recommended IDCO-O.P. No.6 that Ac.90.00 of land at the said
villages may be alienated in favour of O.P. No.7 for establishment of
the said unit and Annexure-1 is a photo copy of the said letter. The
O.P. No.6, namely, IDCO filed requisition dated 26.08.2010 for
alienation of government land measuring Ac. 36.100 in village
Kolathapangi for the purpose of establishment of the said industry
and Annexure-2 is the photo copy of the said letter. Consequently,
O.P. No.4-Tahasildar, Athagarh initiated a de-reservation case vide
Lease Misc. Case No. 4/2010 to de-reserve said land measuring Ac.
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36.100 dec. under Khata No 116 corresponding to Plot No. 167 (P)
of the said village. Proclamation inviting objections was served in
the Gram Panchayat and also in the village by beating of drums,
but the present writ petitioners did not file any objections
whatsoever though some other villagers filed their objections before
the Tahasildar. Grievances were heard and after making spot
inspection the same were overruled and the Tahasildar submitted
the report on the de-reservation proposal of the said land before the
Sub-Collector, Athagarh, who recommended the same to the
Collector, Cuttack for further action. Thereafter, O.P. No.3-
Collector, Cuttack in exercise of power conferred under Section 3-A
of the OGLS Act and Rule 4 of the OGLS Rules, accorded sanction
to the de-reservation of the said Gochar land measuring Ac. 36.100
dec. for its eventual lease in favour of IDCO for industrial purpose
and copy of the said order is found under Annexure-5.
12. Power to de-reserve the government land recorded as
'Gochar' is provided under Section 3-A of the OGLS Act and the
stipulation is that such power is to be exercised by an officer not
below the rank of a Collector authorized by the Government on
its behalf. Rule 4 of the OGLS Rules prescribe the procedure to
be followed in making such de-reservation which includes, inter
alia, a public notice followed by an enquiry and recommendation.
In this context, the decision of the Supreme Court relied on by
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the learned Advocate General referred to above is relevant, in
which their Lordships of the Supreme Court held that the
contention of the first respondent therein that "once a gochar
always a gochar, and there is no power in anyone at any time, to
alter its status as gochar" is without merit and proceeded further
to observe that the de-reservation of any government land
reserved as gochar should only be in exceptional circumstances
and for valid reasons.
13. In the present case, the de-reservation has been
made following the due procedure contemplated under the OGLS
Act and Rules. Further, during enquiry it was found that there
was Ac.56.33 dec. of Gochar land in village Kolathapangi and the
effective area of the village is Ac.278.25 dec., 5% of the same is
Ac.13.91 dec. The IDCO has applied only for an area of Ac.36.10
dec. for de-reservation and the rest available is Ac.20.23 dec. as
surplus gochar land and said Ac.36.10 dec. of land is undulated,
unfit for grazing and is waste land and therefore the objections
raised also were overruled being devoid of merit. In such
circumstances, the contention of the present writ petitioners that
the de-reservation of land in question, recorded as Gochar, has
been made without following due procedure is without any merit
and liable to be rejected.
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14. The next contention of the learned counsel for the
petitioners is that the alienation of Ac.36.100 dec. of land by way
of lease to O.P. No.7 is not permissible in the eye of law. After
de-reservation of government land measuring Ac.36.100 dec., the
O.P. No.3-Collector, Cuttack sanctioned lease of the said land in
favour of IDCO by letter dated 20.06.2011 for establishment of
industry and lease deed dated 18.07.2011 came to be executed
between the parties by complying the legal formalities. Section
33 of the Orissa Industrial Infrastructure Development
Corporation Act (OIIDC), 1980 stipulates that after transfer of
government land to the Corporation, the Corporation may
dispose of the said land in any manner whether by way of sale,
mortgage, exchange, or lease etc. Section 15 of the said Act
deals with the general powers of the Corporation and sub-clause
(a) states that the Corporation shall have power to lease, sell,
exchange or otherwise transfer any property held by it on such
conditions as may be deemed proper by the Corporation. Our
attention was also drawn to the provisions of the Orissa
Industries (Facilitation) Act, 2004 (Orissa Act 14 of 2004) in this
regard. On the recommendation of the Nodal Agency, IDCO has
granted lease of the land in question in favour of O.P. No.7-
Company for establishment of industry.
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15. The State Pollution Control Board- O.P. No.5, after
considering the inspection report of its scientists, granted
consent to O.P. No.7 to establish the Bulk Terminal of 2.0 MTPA
capacity (which is a packaging unit in which cement unloading
and storing takes place in RCC Silos and packed in bags) subject
to general and special conditions as mentioned therein and
copies of the report and the order of consent are also annexed to
the counter affidavit of the Board. One of the condition
stipulated in it is that "No Grinding shall be done and Cement
shall be packed only." Hence the contentions of the learned
counsel for the petitioners that the IDCO in contravention of the
OIIDC Act, 1980 has transferred the land by way of lease in
favour of O.P. No.7, and the establishment of unit will affect the
environmental condition lack merit and liable for rejection.
In view of the above, there is no merit whatsoever
in the writ petition. In the result the writ petition is dismissed.
No costs.
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Chief Justice
I. Mahanty, J.I agree.
............................. Judge Orissa High Court, Cuttack The 20th day of August, 2013/A. Dash