Kalia Hati And Others vs State Of Odisha And Others on 13 July, 2015

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Orissa High Court

Kalia Hati And Others vs State Of Odisha And Others on 13 July, 2015

Author: Biswajit Mohanty

Bench: Pradip Mohanty, Biswajit Mohanty

ORISSA HIGH COURT, CUTTACK
W.P.(C) Nos. 10431, 10432,10433,10436 and 7163 of 2012
In the matter of applications under Articles 226 and 227 of the
Constitution of India.

W.P. (C) No.10431 of 2012

Kalia Hati and others ...... Petitioners

Versus
State of Odisha and others ...... Opp. parties

For Petitioners : M/S. M.K.Pati, R.K.Mohapatra,
B.P.Satpathy & S.K.Mishra

For Opp. parties : Mr.J.P.Pattnaik, Addl. Government Advocate
(for O.Ps.1,3,4 and 7)

Mr.Gautam Mukharjee, A.C.Panda,
Subhalaxmi & S.Priyadarsini (for O.P.No.2)

Mr.Jayant Das (Senior Advocate)
Mr.S.S.Das, Senior Advocate,
M/s.A.N.Das, Miss K.Behera, S.Modi,
P.K.Ghosh & S.S.Pradhan
(for O.Ps. 5 & 6)

W.P. (C) No.10432 of 2012

Kamal Bhoi and others ...... petitioners

Versus
State of Odisha and others ...... opp. parties

For Petitioners : M/S. M.K.Pati, R.K.Mohapatra,
B.P.Satpathy & S.K.Mishra

For Opp. parties : Mr.J.P.Pattanaik, Addl. Government Advocate
(for O.Ps.1,3,4 and 7)

Mr.Gautam Mukharjee, A.C.Panda,
Subhalaxmi & S.Priyadarsini (for O.P.No.2)

Mr.Jayant Das (Senior Advocate)
//2//

Mr.S.S.Das, Senior Advocate,
M/s.A.N.Das, Miss K.Behera, S.Modi,
P.K.Ghosh & S.S.Pradhan
(for O.Ps. 5 & 6)

W.P. (C) No.10433 of 2012

Nandalal Mahananda and others ...... petitioners

Versus
State of Odisha and others ...... opp. parties

For Petitioners : M/S. M.K.Pati, R.K.Mohapatra,
B.P.Satpathy & S.K.Mishra

For Opp. parties : Mr.J.P.Pattanaik, Addl. Government Advocate
(for O.Ps.1,3,4 and 7)

Mr.Gautam Mukharjee, A.C.Panda,
Subhalaxmi & S.Priyadarsini (for O.P.No.2)

Mr.Jayant Das (Senior Advocate)
Mr.S.S.Das, Senior Advocate,
M/s.A.N.Das, Miss K.Behera, S.Modi,
P.K.Ghosh & S.S.Pradhan
(for O.Ps. 5 & 6)

W.P. (C) No.10436 of 2012

Santosh Hati and others ...... petitioners

Versus
State of Odisha and others ...... opp. parties

For Petitioners : M/S. M.K.Pati, R.K.Mohapatra,
B.P.Satpathy & S.K.Mishra

For Opp. parties : Mr.J.P.Pattnaik, Addl. Government Advocate
(for O.Ps.1,3,4 and 7)

Mr.Gautam Mukharjee, A.C.Panda,
Subhalaxmi & S.Priyadarsini (for O.P.No.2)

Mr.Jayant Das (Senior Advocate)
Mr.S.S.Das, Senior Advocate,
M/s.A.N.Das, Miss K.Behera, S.Modi,
P.K.Ghosh & S.S.Pradhan
(for O.Ps. 5 & 6)
//3//

W.P. (C) No.7163 of 2012

Geda Chhatar and others ...... petitioners

Versus
State of Odisha and others ...... opp. parties

For Petitioners : M/S. M.K.Pati, R.K.Mohapatra,
B.P.Satpathy & S.K.Mishra

For Opp. parties : Mr.J.P.Pattanaik, Addl. Government Advocate
(for O.Ps.1,3 and 4)

Mr.Gautam Mukharjee, A.C.Panda,
Subhalaxmi & S.Priyadarsini (for O.P.No.2)

Mr.Jayant Das (Senior Advocate)
Mr.S.S.Das, Senior Advocate,
M/s.A.N.Das, Miss K.Behera, S.Modi,
P.K.Ghosh & S.S.Pradhan
(for O.Ps. 5 & 6)

-------------------
Date of Judgment: 13.07.2015
--------------------
P R E S E N T:
THE HONOURABLE MR. JUSTICE PRADIP MOHANTY
AND
THE HONOURABLE MR. JUSTICE BISWAJIT MOHANTY

Biswajit Mohanty, J. The above writ petitions have been filed by the villagers

of Mahada, Sargunamunda, Pudapadar and Ghantbahal falling under

Titilagarh Tahasil in the district of Bolangir mainly with the following

prayers:

To admit the writ applications, issue Rule Nisi calling upon
the opp. parties to show cause as to why the Lands acquisition
proceeding and notifications U/s.4 (1) and declaration U/s.6 (1)
and notice under Section 12 (2) of the L.A. Act and all
//4//

consequential decisions shall not be declared illegal and
inoperative and shall not be quashed;

If the opp. parties failed to show cause or show insufficient
cause, the said Rule be made absolute and consequently the Land
acquisition proceeding for construction of Sahara India Power
Corporation at Ghantabahal, Mahada, Sargunamunda,
Luthurbandh, Pudapadar, Jamjore & Serko etc. be declared as
illegal, arbitrary and inoperative in the eyes of law and the
notification U/s. 4 (a), U/s.6 (1) and notice under Sec.12 (2) of the
L.A. Act and all consequential decisions be quashed;

It may be noted here that W.P. (C) No.10431 of 2012, W.P. (C) No.10432 of

2012, W.P. (C) No.10433 of 2012 and W.P.(C) No.10436 of 2012 were filed

by villagers of Sargunamunda, Mahada, Pudapadar and Ghantabahali

respectively. W.P. (C) No.7163 of 2012 was filed by villagers belonging to

the above four villages only.

2. At the outset, it is made clear that learned counsel for the

parties agreed and submitted that since the issues involved in all these

writ petitions are one and same, W.P. (C) No.10432 of 2012 should be

taken as lead case along with other writ applications. Learned counsel for

the petitioners filed memos on 26.03.2015 to the effect that written note of

submission filed on behalf of the petitioners on 19.02.2015 in W.P. (C)

No.10432 of 2012 be treated as final and the same be adopted for rest four

writ applications. Though initially all the writ petitions were filed as public

interest litigations, however, later on, vide order dated 19.06.2012 passed

in W.P. (C) No.10431 of 2012, it was made clear that interim orders passed

earlier have to be confined to the petitioners of these five cases only. Thus,

for all purposes the present writ petitions have become private interest

litigations between petitioners and the opp. parties. It is important to note

here that vide orders dated 12.11.2014, the names of petitioner Nos.11 and
//5//

13 have been deleted from W.P. (C) No.10432 of 2012, name of petitioner

No.7 has been deleted from W.P. (C) No.7163 of 2012, names of petitioner

Nos.8 and 19 have been deleted from W.P. (C) No.10436 of 2012, names of

petitioner Nos.5,10,12,18,19 and 20 have been deleted from W.P. (C)

No.10433 of 2012 and names of petitioner Nos. 14 and 15 have been

deleted from W.P. (C) No.10431 of 2012.

3. Now to a survey of facts. On 16.10.2008, there was a meeting

of the State Level Single Window Clearance Authority (for short "the

SLSWCA") which was chaired by the Chief Secretary, Odisha. In the said

meeting, amongst other proposals, proposal of opp. party No.5, i.e., M/s.

Sahara India Power Corporation Ltd. for setting up a 1320 MW Coal based

Mega Power Plant at village Turla and Ratanakhandi under Tusra Tahasil

of Bolangir district with an investment of Rs.5604.00 crores was

considered. The SLSWCA recommended the proposal of opp. party No.5 to

High Level Clearance Authority (for short the "HLCA") subject to a number

of conditions. Some time thereafter, on 7.2.2009, a Memorandum of

Understanding (Annexure-A/1 series filed in W.P. (C) No.10432 of 2012)

was signed between opp.party No.5 and Governor of Odisha represented by

the Commissioner-cum-Secretary, Energy Department. In the said MOU, it

was indicated inter alia that:

(i) infirm power would be made available to the State at
variable cost.

(ii) a nominated agency(s) authorized by Government would
have the right to purchase 14% of power sent out from the
Thermal Power Plant(s) at variable cost if Coal Blocks are
allocated to the IPP within the State, otherwise, it would
provide 12% power at variable cost. Tariff for such power
would be determined by the Odisha Electricity Regulatory
Commissions.
//6//

(iii) Opp. party No.5 would have the right to sell the balance
power from the Thermal Power Plant(s) to any party outside or
inside the State of Odisha subject to applicable laws and
regulations, for which opp. party No.5 might enter into
contractual arrangement(s) with such buyer(s), the terms of
which would be mutually agreed between opp. party No.5 and
such buyer (s).

(iv) In case the Government or its nominated agency was
unable to honour the terms of the Power Purchase Agreement
(PPA), opp. party No.5 would have the right to sell such power
to any other party in or outside the State of Odisha.

(v) The Government agreed to acquire the required land and
handover the required land free from all encumbrances to
opp.party No.5 through Odisha Industrial Infrastructure
Development Corporation (IDCO) for the Project and allied
facilities.

(vi) Opp. party No.5 agreed to pay the cost of the land to IDCO
in case the land was acquired for the purpose and to the
revenue authorities in case the land was Government land
along with the rehabilitation costs and other related charges.
In case the Project was abandoned for some reason or other,
all required rehabilitation cost would be borne by the opp.
party No.5 in the same manner as if the project had been
implemented. All incidental charges paid by the opp. party
No.5 for such land acquisition paid to various authorities
would stand forfeited.

(vii) As the opp. party No.5 was a responsible corporate house
with a high involvement in employee's welfare and social
development, the Government, therefore, understood that opp.
party No.5 would bring this philosophy to the Power Plant
being set up in Bolangir District to ensure the well being of
this District in particular and the people of Odisha in general.
In the matter of employment, preference would be given to the
people of Odisha as well as local persons subject to the need
of the project and their possessing the necessary qualifications
and opp. party No.5 agreed to comply with policies of the State
Government in this regard.

Employment to local people would be provided by the opp.
party No.5 in the following ratios for the project affected
people and people of Odisha;
//7//

Un-skilled and Semiskilled A minimum 90% of the total
requirement from the local people

Skilled level Minimum 60% from among the local
people

Supervisory managerial A minimum 30% from among the local
people

Senior Executives Open Market based on merit

4. On 4.8.2009 (Annexure F/6 filed in W.P. (C) No.10432 of

2012), the Government of Odisha in Industries Department in exercise of

power conferred by Section 2(h), 2 (i) and 14 of the Odisha Industrial

Infrastructure Development Corporation Act, 1980, for short "1980 Act"

and in pursuance of Revenue Department Notification No.44308/R dated

20.8.1981 declared some industrial zones as industrial estates/industrial

areas for purposes of development/establishment of industries by Odisha

Industrial Infrastructure Development Corporation (IDCO) in the State with

immediate effect. The said notification covers Titilagarh Industrial Estate,

falling within Titilagarh Tahasil under Bolangir district. On 16.12.2009

(Annexure-C/2 series filed in W.P.(C) No.10432 of 2012), the Chairman-

cum-Managing Director of Industrial Promotion and Investment

Corporation of Odisha Ltd., a Government of Odisha undertaking wrote to

opp. party No.2 that 950 acres of land be acquired near village

Ghantabahal, Mahada, Bhalegaon in Titilagarh Tahasil in the district of

Bolangir in favour of opp.party No.5 for setting up 1320 M.W. Power Plant.

It was also made clear that the usual terms and conditions of IDCO in

addition to the terms and conditions stipulated in MOU be mentioned while
//8//

executing the land lease agreement. On 14.1.2010, the Odisha Electricity

Regulatory Commission made the following observations:-

" xxx xxx xxx xxx
The gap between availability and the State's Energy
requirement has narrowed down from 2003-2004 to 2007-
2008 and in the middle of 2007-2008, the availability was
equal to the demand. However in the end part of 2008-2009,
the availability has fallen below the State's requirement. The
situation has worsened further because of the returning of
power to the States which had helped Orissa to tide over the
power crisis during last summer. The only options left with
the existing power distribution authorities are to restrict drawl
of distribution licenses or buy power through the route of
trade which not only implies enhanced financial burden on
the State exchequer but is also limited in supply. Distribution
authorities have therefore, in utter compulsion, no other
recourse that go for load shedding which implies long duration
power cuts in various parts of the State affecting function of
everyday life. xxx xxx xxx"

5. On 27.1.2010 vide Annexure-A/2 series filed in W.P.(C)

No.10432 of 2012, the HLCA approved the proposal of opp. party No.5 to

change the location of the proposed 1320 MW Coal based Power Plant to

village Ghantabaheli, Mahada and Bhalegaon under Titilagarh Tahasil in

the district of Bolangir, subject to fulfillment of certain conditions as

stipulated therein. Accordingly, on 4.3.2010 (Annexure-E/2 series filed in

W.P. (C) No.10432 of 2012), IDCO requested opp. party No.3 that a patch

of private land measuring Ac.197.87 decimals in village Mahada under

Titilagarh Tahasil in the district of Bolangir has been identified as suitable

for Industrial Development and the said parcel of land be acquired for

industrial purpose. The land schedule along with detail particulars were

enclosed in the said letter dated 4.3.2010 for reference. Similar such letters

were issued by the IDCO requesting opp. party No.3 for acquisition of land

for industrial purposes in village Ghantabaheli, Luthurbandh, Serka,
//9//

Jamjor, Podapadar and Sargunamunda. It is important to note here that

present five writ petitons are concerned with only four villages, namely,

Sargunamunda, Mahada, Pudapadar and Ghantabaheli. On 9.4.2010

(Annexure-1 series filed in W.P. (C) No.10432 of 2012) Supplemental deed

of Memorandum of Understanding was signed between the Governor of

Odisha represented by the Commissioner-cum-Secretary, Energy

Department and opp.party No.5. It was made clear therein that whereas

the aforesaid parties had entered into a deed of Memorandum of

Understanding on 7.2.2009 to set up a Thermal Power Plant of 1320 MW at

Turla, Bolangir in the State of Odisha, whereas the proposal of opp. party

No.5 to change the location of the proposed 1320 MW Coal based plant to

some villages of Titilargh Tahasil has been approved by HLCA on 27.1.2010

and whereas Water Resources Department have given clearance for

proposed Thermal Power Plant in the new location; now, therefore, it was

agreed that in the principal MOU dated 7.2.2009 for the words "Turla,

Bolangir" wherever they occurred, the words "Ghantabaheli, Mahada and

Bhalegaon under Titilagarh Tahasil in Bolangir district" should be deemed

to have been substituted. On 11.5.2010 vide Annexure-D/2 of W.P. (C)

No.10432 of 2012, Government granted administrative approval for

acquisition of land measuring Acs. 808.450 decimals in Titilagarh Tahasil

with certain conditions. Out of the four villages with which we are

concerned, these villages covered an area of Acs. 581.230 decimals.

6. Accordingly, notification dated 7.6.2010 under Section 4 (1) of

the Land Acquisition Act, 1894, for short "1894 Act" was published in the

Orissa Gazette Extraordinary on 11.6.2010 with regard to village Mahada.
//10//

On 16.06.2010 public notice of substance of notification was made. All

these have been indicated in the affidavit dated 18.4.2015 filed on behalf of

opp. parties 3 and 4. This notification with regard to village Mahada was

published in Oriya newspapers - "Sambad Kalika" and "Agni Sikha" on

21.06.2010. Pursuant to such notifications while 22 persons filed their

objections, no objection was submitted by the petitioners. On 25.11.2010,

declaration under Section 6 (1) dated 20.11.2010 was published in official

gazettee. The said declaration was also published in Oriya newspapers -

"Sambad" and "Dharitri" on 20.01.2011. Public notice of substance of such

declaration was made on 30.11.2010. All these have been indicated in the

affidavit dated 18.4.2015 filed on behalf of opp. parties 3 and 4. Similarly,

with regard to villages-Sargunamunda, Pudapadar and Ghantabaheli, the

required notifications under Section 4 (1) of the "1894 Act" were also

published in the Orissa Gazettee, in Oriya newspapers and public notices

of substance of notification were also made. All these have been indicated

in the affidavits dated 18.4.2015 filed in W.P. (C) No.10431 of 2012, W.P.

notifications with regard to villages-Sargunamunda, Pudapadar and

Ghantabaheli, 25 objections, 30 objections and 45 objections were received

respectively. The petitioners of W.P. (C) No.10431 of 2012 belonging to

village, Sargunamunda; petitioners of W.P. (C) No.10433 of 2012 belonging

to village, Pudapadar and petitioners of W.P. (C) No.10436 of 2012

belonging to village Ghantabaheli and petitioners of W.P. (C) No.7163 of

2012 belonging to villages-Sargunamunda, Mahada, Pudapadar and

Ghantabaheli never filed any objections. Similarly, with regard to villages-
//11//

Sargunamunda, Pudapadar and Ghantabaheli, declarations under Section

6 (1) of "1894 Act" were published in Orissa Gazettee, also published in

Oriya newspapers and public notices of substance of declaration were

made. All these have been indicated in the affidavits dated 18.4.2015 filed

in W.P. (C) No.10431 of 2012, W.P. (C) No.10433 of 2012 and W.P. (C)

No.10436 of 2012. On 22.11.2010, the opp. party No.5 deposited

Rs.6,38,16,922/- with IDCO. On 4.12.2010 vide Annexure-H/2 filed in

W.P. (C) No.10432 of 2012, IDCO deposited Rs.3,60,14,363/- with opp.

party No.4 towards cost of acquisition of land in five numbers of villages,

namely, Luthurbandha, Jamjor, Saragunamunda, Pudapadar and Serko

under Titilagarh Tahasil in the district of Bolangir. On 29.4.2011, the

petitioner Nos.9 and 17 of W.P. (C) No.10432 of 2012 along with others

belonging to villages-Sargunamunda, Pudapada and Ghantabaheli filed

W.P. (C) No.11768 of 2011 making a number of prayers. Awards were made

on 01.06.2011, 16.06.2011, 16.06.2011 and on 29.6.2011 in respect of

villages-Pudapadar, Mahada, Ghantabaheli and Sargunamunda

respectively. In respect of above villages, possession of the lands in

question were taken by the Government between July, 2011 to March,

2012. On 13.7.2011, W.P. (C) No.11768 of 2011 was disposed of by

granting liberty to the petitioners therein to approach the opp. parties 1, 2

and 4 of that writ application by filing representations and it was made

clear therein that if such representations were submitted, the said

representations should be considered and disposed of within six weeks

from the date of its submission. Vide order dated 17.9.2011 (Annexure-4

filed in W.P. (C) No.10432 of 2012), State Pollution Control Board, Odisha
//12//

intimated Harekrushna Chattar petitioner No.1 in the aforesaid writ

petition indicating disposal of his representation with certain comments.

On 26.9.2011 (Annexure-H/2 filed in W.P. (C) No.10432 of 2012), IDCO

deposited Rs.2,60,89,162/- with opp. party No.4 towards the cost of

acquisition of land in respect of the villages, i.e., Ghantabahali and

Mahada. On 17.04.2012, W.P. (C) No.7163 of 2012 was filed and on

16.05.2012, this Court directed maintenance of status quo with regard to

possession of petitioners therein. On 02.06.2012 (Annexure-3 filed in W.P.

published in Odiya daily "the Sambad". It was indicated therein that those

who would not receive the compensation amount that amount would be

deposited in the District Treasury and the land would be handed over to

IDCO authorities. In such background, on 6.6.2012, W.P. (C) Nos.10431 of

2012, 10432 of 2012 and 10433 of 2012 were filed. On 07.06.2012, W.P.

W.P. (C) No.10432 of 2012 intimated opp. Party No.2 to take over

possession of acquired land to the tune of Ac.608.61 decimals covering

villages-Pudapadar, Mahada, Ghantabaheli, Sargunamunda, Luthurbandh

and Jamjore, which were already in their possession. So far as villages,

Sargunamunda, Mahada, Pudapadar and Ghantabaheli are concerned, the

acquired land came to the tune of Ac.482.24 decimals. The letter dated

8.6.2012 filed along with affidavit dated 18.4.2015 by opop. party Nos.3

and 4 clearly indicated that land of petitioners of W.P. (C) No.7163 of 2012

have been excluded. On 11.6.2012 status quo orders with regard to

possession were passed in W.P. (C) No.10431 of 2012, W.P. (C) No.10432 of
//13//

2012, W.P. (C) No.10433 of 2012 and W.P. (C) No.10436 of 2012. Later on

vide order dated 19.6.2012 passed in W.P.(C) No.10431 of 2012, it was

made clear that the interim orders passed earlier were confined to

petitioners only in all five writ petitions. As indicated earlier, this modified

order is reflected in the order sheet of W.P.(C) No.10431 of 2012. On

2.7.2012, opp. Party Nos. 4 and 7 of W.P. (C) No.10432 of 2012 handed

over possession of Ac.392.20 decimals of land of six villages including

villages-Sargunamunda, Mahada, Pudapadar and Ghantabaheli to IDCO.

On 31.7.2012 by way of registered agreements between the State and

IDCO, Government transferred Ac.392.20 decimals of land to IDCO with

certain terms and conditions. On 28.8.2012, IDCO executed lease deed in

favour of opp. party No.5 and handed over possession of land to the tune of

Ac.392.20 decimals for 90 years with a number of conditions. Accordingly,

on 4.9.2012, possession was handed over to opp. party No.5. All these

things are contained in documents filed along with an affidavit on

18.4.2015 on behalf of opp. Party Nos.4 and 5. It is an affidavit covering

W.P. (C) Nos.10431,10432,10433,10436 of 2012.

7. Heard Mr. S.K. Mishra, learned counsel for the petitioners, Mr.

Mukherjee, learned counsel for opp. party No.2, Mr. Jayanta Das and Mr.

S.S.Das, learned Senior Counsel on behalf of opp. parties 5 and 6 and Mr.

J.P. Pattanaik, learned Addl. Government Advocate.

8. Perused the written submission dated 19.02.2015 filed by Mr.

Mishra, learned counsel for the petitioners, written submissions dated

13.02.2015 filed by Mr. Mukherjee, learned counsel for the opp. party No.2

and written submissions dated 13.8.2014 and 16.02.2015 filed by
//14//

Mr.Jayanta Das and Mr. S.S.Das, learned Senior Counsel for opp. parties 5

and 6. It may be noted that as per five memos filed by the learned counsel

for the petitioners on 26.03.2015, it was made clear that the written note of

submission filed on behalf of the petitioners on 19.02.2015 in W.P. (C)

No.10432 of 2012 be treated as final and the same was being adopted for

the rest four writ petitions. After the judgment was reserved on 11.2.2015,

the matter was listed under the heading "To be mentioned" and on

5.5.2015, the following question was referred to Full Bench:

"Whether in the background of the entire Scheme of OIIDCO
Act, 1980 would it be proper to say that as per the said Act, IDCO can
cause acquisition of land only for the purpose of establishing
industrial estate/industrial area and for no other purpose ?"

Judgment by the Full Bench was pronounced on 30.06.2015 holding

that sub-section (i) of Section 14 of the "1980 Act" was independent and

was couched in broad terms. The same cannot be in any manner whittled

down by the language of sub-section (ii) of Section 14 of "1980 Act". It also

made it clear that function and general powers of the Corporation as

enumerated in Sections 14 and 15 of "1980 Act" could not be cabined,

cribbed and confined by language used in Section 14 (ii).

9. Now to submissions made by learned counsel for the parties.

Mr. Mishra, learned counsel for the petitioners submitted that on account

of non-publication of Section 4 (1) notification in two newspapers having

wide circulation in locality, the petitioners could not file their objections in

terms of Section 5-A of the "1894 Act" and thereby the petitioners had been

deprived of their legitimate right to object to the acquisition proceeding. He

also submitted that the declaration under Section 6 (1) of "1894 Act" had
//15//

not also been published in two newspapers having wide circulation in

locality. Accordingly, the proceeding has been vitiated.

Secondly, he contended that the sequence of events indicated

that the entire process was geared up to acquire land for opp. party No.5.

In such background the authorities ought to have taken steps under Part-

VII of the "1894 Act" read with Land Acquisition (Companies) Rules, 1963.

Since the authorities had not adhered to the procedure prescribed under

Part-VII of the "1894 Act" dealing with acquisition of land for Companies

and the procedure prescribed by Land Acquisition (Companies) Rules,

1963, the entire proceeding was vitiated and the prayer of the petitioners

should be allowed. Mr. Mishra reiterated that the acquisition process was

initiated by the State Government to acquire the land for opp. party No.5

and subsequently IDCO was brought into the picture in an attempt to

regularize the acquisition. The acquisition of land by the State Government

for opp. party No.5-Company to set up its power plant was not tenable as

the same had been done in violation of the mandates of Part-VII of the

"1894 Act". He further argued that the acquisition could not be said to be

on the basis of the proposal made by the IDCO, as much prior to the

alleged proposal, the State Government had already entered into an

agreement to acquire the land for opp. party No.5. With regard to

notification dated 4.8.2009, (Annexure-F/6), Mr. Mishra submitted that the

same had no relevance as the area can be notified as industrial area only

after acquisition is made and not before acquisition and by the time the

notification was published, the area in question had not been acquired by

the Government. The opp. parties have made an attempt to bring the
//16//

acquisition within the purview of Part-II of the "1894 Act" though the

prerequisites for such acquisition under "1980 Act" was lacking in the

instant case.

Thirdly, he submitted that the claim that the acquisition was

made for public purpose was not tenable, as the acquisition was made for a

private company. Referring to definition of "Public Purpose" occurring at

Section 3 (f) of "1894 Act", Mr. Mishra emphatically submitted that the said

definition specifically excluded acquisition of land for companies. Since in

the instant case the land had been acquired for company like opp. party

No.5, who has paid for the land, it could not be said that the same had

been acquired for public purpose.

10. On the other hand, Mr. Pattnaik, learned Addl. Government

Advocate submitted that the writ petition was highly belated and on that

count the writ petition deserved to be dismissed. With regard to four

villages in question, he submitted that awards were made in June, 2011

and the present writ petitions were filed on 17.04.2012, 6.6.2012 and

7.6.2012. Further except the petitioners, who were now pursuing their

cases, rest of the villagers of four villages to which the petitioners belong

have taken their compensation amounts.

Secondly, Mr. Pattnaik submitted that there were no

documents to show that petitioners of the five writ petitions were the

recorded owners of the lands in question covered by notification under

Section 4 (1) of the "1894 Act" relating to four villages. Accordingly, the

petitioners have no locus standi to challenge the notifications.
//17//

Thirdly, he submitted that though from villages-Pudapadar,

Sargunamunda,Ghantabaheli and Mahada 30,25,45 and 22 numbers of

objections were received respectively under Section 5-A of the "1894 Act",

the petitioners never filed any objection to that effect. Non-filing of

objections by above noted petitioners clearly revealed that they were not in

any way affected by the land acquisition process rather they had

acquiesced to the acquisition process. On this count, he further submitted

that the contention of petitioners that since Section 4 (1) notification was

not published in two regional newspapers and thus, the petitioners could

not file their objections, had no legs to stand. He submitted that with

regard to village Mahada, besides the Gazettee Notification, the notification

dated 7.6.2010 under Section 4 (1) of "1894 Act" was published on

21.6.2010 in Oriya newspapers "Sambad Kalika" and "Agni Sikha"

circulating in the locality. Further, he submitted that the substance of the

notification was publicly notified at convenient place of village Mahada on

16.06.2010. Similarly, with regard to village Sargunamunda besides the

Gazettee Notification, the notification dated 7.7.2010 under Section 4 (1) of

"1894 Act" was published on 31.07.2010 in Oriya newspapers "Odisha

Bhaskar" and "Kalinga Bharati" circulating in the locality. Further, the

substance of notification was publicly notified at convenient place of

village-Sargunamunda on 16.07.2010. With regard to village-Pudapadar,

Mr. Pattnaik, learned Addl. Government Advocate submitted that besides

Gazettee notification, the notification dated 7.7.2010 under Section 4 (1) of

"1894 Act" was published on 31.07.2010 in Oriya Newspapers-"The

Sambad Kalika" and "The Janamukha" circulating in the locality. Further,
//18//

the substance of notification was publicly notified in the locality on

21.07.2010. With regard to village Ghantabahali, besides Gazettee

notification, Mr. Pattnaik, learned Addl. Government Advocate submitted

that the notification dated 7.6.2010 under Section 4 (1) of "1894 Act" was

published on 21.06.2010 in Oriya newspapers "The Bharat Darshan" and

"The Pragatantra", circulating in the locality. Further, the substance of

notification was published in the locality on 16.06.2010. Accordingly, Mr.

Pattnaik reiterated that the very fact that 22 villagers belonging to village

Mahada, 25 villagers belonging to village Sargunamunda, 30 villagers

belonging to village-Pudapadar and 45 villagers belonging to village

Ghantabaheli submitted their objections to Section 4 (1) would show that

there was wide publication of Section 4 (1) notification. Since despite public

notice the above noted petitioners did not object to the said notifications,

now, therefore, they should be estopped from challenging notification

under Section 4 (1) of "1894 Act" with regard to villages- Mahada,

Sargunamunda, Pudapadar and Ghantabaheli. In this context, he

submitted that law was well settled that no writ was maintainable at the

behest of the persons who never cared to submit their objections pursuant

to notification under Section 4 (1) of "1894 Act". He relied on a decision

reported in (2000) 7 SCC 296 (Delhi Administration v. Gurdip Singh

Uban and others)

Fourthly, he submitted that in the present case, the

notification under Section 4 (1) of "1894 Act" would clearly show that the

land was acquired at the instance of opp.party No.2 for public purposes,

i.e., for industrialization through IDCO. Section 4 (1) notification also made
//19//

it clear that land was being acquired at the cost of public money. In such

background, he submitted that acquisition was clearly under Part-II of the

"1894 Act" and therefore, Part-VII of "1894 Act" and the Land Acquisition

(Company) Rules, 1963 had no application to the present case. He further

submitted that the documents under Annexure-H/2 would show that it

was IDCO not opp. party No.5 which had deposited the compensation

amount with the opp. party Nos.4 and 7 to be distributed to the land

oustees.

Fifthly, he submitted that M.O.U. under Annexure-1 series

clearly reserved the right of the Government to purchase 14% of power at

variable cost if coal blocks were allocated within the State, otherwise,

government would have right to purchase 12% of the power at variable cost

and tariff as would be determined by Odisha Electricity Regulatory

Commission. Thus, apart from industrialization for a backward area like

Titilagarh, government was going to get power from opp. party No.5.

Further, the M.O.U. made it clear that local people would get employment

under opp. party No.5 in different categories of jobs, like unskilled, semi

skilled, skilled and supervisory/managerial.

Sixthly, he submitted that the lands in question were non-

irrigated lands and in any case the petitioners of the five writ petitions were

going to get benefits under Odisha Rehabilitation and Re-Settlement Policy

2006.

Lastly, he submitted that though the petitioner Nos. 9 and 17

of W.P. (C) No.10432 of 2012 along with others moved this Court in W.P.

on 13.07.2011 while disposing of said writ petition, these petitioners never

made any grievance before opp. party No.1 by submitting any

representation. Mr. Pattnaik also submitted that as per order dated

19.6.2012 passed by this Court in W.P.(C) No.10431 of 2012, which also

covered the rest four writ petitions, all these writ petitions have become

private interest litigations and are confined to petitioners of five writ

petitions only. In case they would succeed in the writ petitions, it would

not lead to quashing of entire land acquisition process vis-à-vis four

villages of Mahada, Sargunamunda, Pudapadar and Ghantabaheli. These

petitioners would only get back their land from the process of acquisition.

However, he made it clear that this was without prejudice to his earlier

submission that there was no infirmity in the land acquisition process and

accordingly submitted that the writ petitions were without any merit and

the same should be dismissed.

11. Mr. Mukherjee, learned counsel for the opp. party No.2

submitted that State of Odisha was suffering from power deficit and to

resolve the issue, the Industrial Policy Resolution, 2007 (in short "IPR

2007") has been adopted under which establishment of captive power plant

in the State by private parties has been made permissible. He relied heavily

on the order dated 14.01.2010 passed by the Odisha Electricity Reforms

Commission.

Secondly, he submitted that IDCO was a nodal agency which

was created by statute for securing orderly establishment of industry in the

industrial area/industrial estate in the State of Odisha. According to Mr.

Mukherjee, a reading of the entire IDCO Act along with its Sections 14 and
//21//

15 would show that the IDCO has very wide powers and functions for

developing industrial infrastructure in the State and at the request of

IDCO, State could acquire land for many purposes covered by Sections 14

and 15 of "IDCO Act". According to them, under Section 32 of the "IDCO

Act", the Government can transfer acquired land to IDCO and under

Section 33 of "IDCO Act", IDCO can lease out such acquired land with

certain terms and conditions. In the instant case, IDCO had only leased

out a certain quantity of land in favour of opp. party No.5 for industrial

purpose for a period of 90 years.

Thirdly, he submitted that IDCO had also deposited the land

cost under Annexure H/2. According to him, there were several power

companies waiting for industrial land and for the said purpose different

MOUs have been signed with them. If project of opp. party No.5 became

unviable, the IDCO would get back the land for allotment to other

industrialists, who were waiting in queue for allotment of the industrial

land. With regard to public purpose, Mr. Mukherjee submitted that the

M.O.U provided for supply of electricity at a concessional rate to the State

Government and guaranteed employment to a vast section of public in one

of the most remote and underdeveloped areas of the State.

Fourthly, he submitted that almost 80% of the displaced

persons have happily accepted the land cost. Thus, according to him the

writ petition was without any merit and the same should be dismissed.

12. In his written submission, Shri Mukherjee has relied on the

decisions reported in AIR 2003 SC 3141 (Maruti Suzuki India Ltd. v.

Rajiv Kumar Loomba and another etc.), AIR 2009 SC 2086 (Urmila Roy
//22//

and others v. M/s. Bengal Peerless Housing Development Company

and others) AIR 2004 SC 561 (Guruvayur Devaswaom Managing

Committee and another v. C.K.Rajan and others), (2008) 9 SCC 552

(Sooraram Pratap Reddy and others v. Dist. Collector, Ranga Reddy

Dist. and others) and 2014 (II) ILR Cuttack 64 (Sachalabala Sethy and

others v. the Chief Secretary and Chief Development Commission,

Odisha and others) .

13. Mr. Jayanta Das, learned Senior Advocate supported by Mr.

Sourya Sundar Das, learned Senior Advocate representing opp. parties 5

and 6 submitted that in case of four villages, the award under Part-II of

the "1894 Act" was passed during June 2011 and possession had been

taken by the State of Odisha and the writ petitions were filed in April and

June, 2012, almost after a period of one year from the date of award. On

this count, Mr. Das learned Senior Counsel relying on the decisions

reported in (2008) 4 SCC 695 (Swaika Properties (P) Ltd. and another v.

State of Rajasthan and others) submitted that the writ petitions were

not maintainable and should be dismissed on the ground of delay.

Secondly, he submitted that none of the petitioners had raised

any objection to the notification issued under Section 4 (1) of "1894 Act"

and having not raised such objection, the petitioners were estopped in law

to raise any challenge to notification under Sections 4 and 6 of "1894 Act"

at a belated stage. In this context, Mr. Das relied on the decision reported

in AIR 2000 SC 3737 (Delhi Administration v. Gurdip Singh Uban and

others).
//23//

Thirdly, Mr. Das, submitted that the petitioners have not been

given the details of land particulars nor all copies of R.O.R. have been filed

to substantiate the land particulars of the petitioners in all the writ

applications. Most of the R.O.Rs submitted were not legible. According to

him this itself created disputed questions of fact, which ought not to be

adjudicated in writ petitions. In this context, he relied on (2010) 9 SCC 46),

Rajinder Kishan Gupta and another v. Union of India and others.

Fourthly, he submitted that Section 4 (1) notifications would

clearly show that land was purported to be acquired for a public purpose,

i.e., for industrialization through IDCO at public cost. After the State

Government acquired the land, the same had been transferred to IDCO

and IDCO had leased a sizable quantum of land, not the entire acquired

land to opp.party No.5 which was a public limited company. Since the land

was acquired by the State Government for public purpose at public cost,

according to Mr. Das, the acquisition was clearly under Part-II of "1894

Act" and in such back ground Part-VII of "1894 Act" and Land Acquisition

(Company) Rules, 1963 had no application to the present case. He

reiterated that opp. party No.5 was only a lessee to a part of entire acquired

land and power plant being an infrastructure and public utility industry,

no illegality had been committed by the State in its action.

Fifthly, he submitted that the instant case was clearly covered

under section 3 (f) (iv) of the "1894 Act", which made it clear that making

provision of land for a corporation owned and controlled by the State was

for public purpose. Having regard to the language of notification under

Section 4 (1) where it had been made clear that land had been acquired for
//24//

industrialization through IDCO at public cost, therefore, in the instant

case, the land had been acquired for public purpose. In such background,

Part-II of the "1894 Act" was clearly attracted. He further submitted that in

this case acquisition had resulted in vesting of acquired land with the

Government. Thus, till date government continues to be the owner of the

land. Government has only transferred the land in question to IDCO on

long term basis along with possession of the part of the acquired land.

IDCO in turn had leased the land to opp. party No.5 for the purpose of

setting up a Thermal Plant for a fixed tenure on payment of rent and

premium. All these would show that land had been acquired for public

purpose and the same had been acquired correctly by applying Part-II of

"1894 Act".

Sixthly, he submitted that a reading of MOU under

Annexure-1 series would make it clear that power would be made available

to the State at cheaper rate, i.e., only at variable cost. Further, the MOU

stipulated that employment preference to be given to the local people. He

also submitted that the power project would generate numerous

employment opportunities directly or indirectly for the local people. In view

of the above, he contended that setting up a power plant was for a public

purpose. According to him, establishment of such industries by a public

company like opp. party No.5 could be said to be imbued with public

purpose. He also submitted that merely because initiation of steps for

acquisition of land was made after signing of MOU, the same would not

mean that such acquisition was for private purpose. In this context he

relied on different decisions by the Hon'ble Supreme Court as reported in
//25//

(2003) 10 SCC, 626 (Prativa Nema and others v. State of M.P. and

others), (2008) 9 SCC 552 (Sooraram Pratap Reddy and others v. Dist.

Collector, Ranga Reddy Dist. And others) and (2010) 10 SCC 282 (Nand

Kishore Gupta and others v. State of U.P. and others).

Seventhly, he submitted that no payment had been made by

opp. party No.5 to opp. party No.7. All payments had been made by opp.

party No.5 to IDCO and it was the IDCO which had deposited the

compensation amount with opp. party No.7 for payment. Once the

amounts were paid by opp. party No.5 to IDCO, the said amount/money

got merged into funds of the IDCO. Thus, it could not be argued that

payment of cost of land by the opp. party No.5-company to IDCO made the

present acquisition, an acquisition under Part-VII of "1894 Act".

Eighthly, he submitted that basic idea of acquisition under

Part-VII of the "1894 Act" was total transfer of ownership. In the present

case, admittedly there was no total transfer of ownership in favour of

companies. Therefore, Part-VII of "1894 Act" was not at all attracted to the

present case. Accordingly, Land Acquisition (Company) Rules, 1963 had no

applicability to the present case.

Ninthly, he submitted that even in absence of notification for

establishment of an industrial area/industrial estate, IDCO could request

the State Government for acquisition of land. In order to fortify his

argument, Mr. Das learned Senior Counsel for opp. parties 5 and 6 relied

on the decisions reported in AIR 1963 SC 151 (Smt. Somavanti and

others v. The State of Punjab and others), (2006) 4 SCC 683 (State of

Karnataka and another v. All India Manufacturers Organization and
//26//

others), (2010) 9 SCC 46 (Rajinder Kishan Gupta and another v. Union

of India and others) and the decisions of this Court rendered in 2014 (II)

ILR Cuttack 64 (Sachalabala Sethy and others v. the Chief Secretary

and Chief Development Commission, Odisha and others) and W.P. (C)

No.16815 of 2012 and also relied on decision of the Full Bench rendered in

this case on 30.06.2015.

Lastly, he submitted that the present writ petition was not

maintainable as it was hit by principle of res judicata. In the said context,

he relied on the decision reported in (2006) 4 SCC 683 (State of

Karnataka and another v. All India Manufacturers Organization and

others).

14. In reply to various contentions raised by the opp. parties, Mr.

Mishra, learned counsel for the petitioners submitted that the decisions

cited by the opp. parties were factually distinguishable and had no

application to the present case and he reiterated his earlier submissions

that this was a case involving acquisition of land out and out for a

company, which could not be said to be for a public purpose and having

not followed Part-VII of "1894 Act", which dealt with acquisition of land for

the company, the entire proceeding had been vitiated. He reiterated that

pre-requisites for applying "1980 Act" were absent in the present case. In

support of his contention that acquisition of the land for company could

only be made in accordance with Part-VII of the Land Acquisition Act and

not in terms with Part-II of the land Acquisition Act, he relied on the

decision reported in 2011 (Supp-I) OLR 130 (Rajiv Pujari v. State of

Orissa). With regard to maintainability of the writ petitions on the ground
//27//

of delay he submitted that the same were maintainable relying on the

decisions reported in (2013) 9 SCC 338 (V.K.M.Kattha Industries Pvt.

Ltd. v. State of Haryana and others), (2009) 10 SCC 115 (Baburam and

another v. State of Haryana and another). Further, he relied on the

decisions reported in AIR 2008 SC 261 (Devinder Singh and others v.

State of Punjab and others) in favour of his argument that when entire

compensation has been paid by opp. party No.5 and there was no decision

by the Government to pay part of the compensation from the inception,

therefore, the acquisition could not turn to one under Part-II of "1894 Act".

Lastly, he relied on the decisions reported in 2012 (1) OLR SC 436

(Raghubir Singh Sehrawat v. State of Haryana and others) to

highlight that before acquiring private land, the State or its

instrumentalities should as far as possible use the land belonging to the

State for the specific public purpose. If the acquisition of private land was

absolutely necessary, then the concerned authority must comply with the

statutory provisions or rules of natural justice before undertaking

acquisition of land.

15. Considering the submissions made by the parties, the

following issues arise for our consideration.

(1) Whether the writ petitions are to be dismissed on the ground
of belated filing ?
(2) Whether the present writ petitions are barred by principle of
res judicata ?
(3) Whether the entire proceeding is vitiated on account of non-
publication of notification under Section 4 (1) in two newspapers
and on account of lack of publicity in the locality ?
//28//

(4) Whether non-filing of objection under Section 5-A would non-
suit the petitioners ?
(5) Whether the writ petitions involve adjudication of disputed
questions of facts when there exist dispute as to land particulars
of the petitioners ?
(6) Whether in the present case acquisition has been made for
any public purpose?
(7) Whether in the facts and circumstances of the case Part-VII of
"1894 Act" would apply and whether initiation of the process for
acquisition of land after entering into MOU would make such
acquisition, an acquisition for a company and thus would attract
Part-VII of "1894 Act"?
(8) Whether IDCO was brought in later to regularize acquisition
process, which was already vitiated?

Findings

16. Issue No.1. From the documents filed along with affidavits

dated 18.04.2015 pertaining to W.P. (C) No.10431 of 2012, W.P. (C)

No.10432 of 2012, W.P. (C) No.10433 of 2012 and W.P. (C) No.10436 of

2012, the following informations are forthcoming relating to Section 4 (1)

notification and Section 6 (1) declaration of four villages which are given in

a tabular form below:

SL. Name Date of Date of Date of Date of Date of Date of Date of Date of
No. of Sec.4 (1) publication publication public 6 (1) publication publication public
Mouza notification in Gazettee In Oriya notice in declarati in Gazttee In oriya notice in
newspaper locality on newspaper locality
1 Mahada 7.6.2010 11.6.2010 21.6.2010 16.6.2010 20.11.2010 25.11.2010 20.1.2011 30.11.2010

2. Sargun
munda 7.7.2010 31.7.2010 31.7.2010 16.7.2010 15.11.2010 16.12.2010 16.12.2010 23.11.2010

3. Pudapad 7.7.2010 31.8.2010 31.7.2010 21.7.2010 15.11.2010 16.12.2010 16.12.2010 23.11.2010
ar

4. Ghantab 7.6.2010 21.6.2010 21.6.2010 16.6.2010 3.12.2010 14.12.2010 13.1.2011 6.12.2010
ahali
//29//

Awards with regard to above four villages were made during June,

2011. W.P. (C) No.7163 of 2012 was filed in April, 2012. Other four writ

petitions were filed in June, 2012. According to opp. parties, under such

circumstances, the writ petitions are grossly belated. However, according to

learned counsel for the petitioners, the writ petitions have been filed within

reasonable time and thus there has not been any delay in filing of the writ

petitions. In this context, the petitioners rely on the decisions reported in

(2013) 9 SCC 338/AIR 2013 SC 3557 (M/s. V.K.M.Kattha Industries Pvt.

Ltd. v. State of Hariyana and others) and (2009) 10 SCC 115 (Baburam

and another v. State of Haryana and another), whereas the opp.

parties 5 and 6 have relied on the decisions reported in (2008) 4 SCC 695

(Swaika Properties (P) Ltd. and another v. State of Rajasthan and

others) and a decision of the Division Bench of this Court dated

23.04.2014 passed in W.P. (C) No.16815 of 2012. In the decision reported

in Swaika Properties (P) Ltd. (supra), notification under Section 52 (2)

(which is pari materia with Section 4 of "1894 Act") of the Rajasthan Urban

Improvement Act, 1959 was issued on 25.06.1975. On 23.08.1975 another

notice was issued by the State under the above noted Section 52 (2) for

acquisition of land. The appellant therein filed objection on 8.9.1975. On

8.2.1984, government issued declaration under Section 52 (1) of the

aforesaid Act (which is equivalent to Section 6 of the "1894 Act"). After

these notices were issued the appellant filed writ petition before Calcutta

High Court. Ultimately, the Hon'ble Supreme Court held that Calcutta high

Court had no territorial jurisdiction over the matter. On 17.02.1987,

possession of land in question was alleged to have taken over by the
//30//

authorities. In 1987 the appellant therein filed writ petition before High

Court of Rajasthan and in 1989 they withdrew the said writ petition and

government approved the award also in 1989. Again in 1989, another writ

petition was filed challenging the notifications dated 8.2.1984 and

17.2.1987 by which possession was alleged to have been taken. Relying on

earlier Supreme Court decision, the Hon'ble Supreme Court took a view

that writ petition having been filed after taking over possession, the case

deserved to be dismissed on the ground of delay and laches. So far as the

case of Gyanendra Kumar Nayak in W.P. (C) No.16815 of 2012 is

concerned, in that case, this Court has come to hold that the said writ

suffered from gross delay and laches as because though there the 4 (1)

notification was issued on 10.03.2010, 6 (1) declaration was made on

29.2.2012 and writ was filed on 7.9.2012. In such background, this Court

came to a finding that writ filed by Gyanendra Kumar Nayak was grossly

delayed. Now coming to the decision cited by Mr. Mishra, learned counsel

for the petitioners, we may first refer to the decision in the case of M/s.

V.K.M.Kattha Industries Pvt. Ltd. (supra). In the said case, Hon'ble

Supreme Court distinguished Swaika Properteis (P) Ltd. case (supra) as

that was a case where writ was filed two years after taking over the

possession. In V.K.M.Kattha case, writ was filed within five weeks of

passing of the award. In the present case, first writ petition, i.e., W.P. (C)

No.7163 of 2012 was filed within one year of the award and less than one

year of taking over the possession. If parameters given in M/s. V.K.M.

Kattha Industreis Pvt. Ltd. (supra) are taken into account, we are of the

view that these writ petitions cannot be dismissed on the ground of delay
//31//

as the same have been filed within 10 to 13 months from the date of

award. In the case of Swaika Properteis (P) Ltd. (supra), there was delay

of more than two years in filing the writ petition after possession was taken

over. Here in this case, the delay is not that much. In Gyanendra Kumar

Nayak's case, this Court has not taken into account the delay in filing of

the writ petition from the date of award or from the date of taking over the

possession. Thus, the said case is factually distinguishable. In the decision

reported in Baburam and another (supra), Section 4 (1) notification was

issued on 23.11.2005, on 2.1.2006 declaration under Section 6 was made

and on 23.5.2006 award was pronounced. Prior to that on 15.2.2006, suit

has been filed. Another suit was also filed on 12.4.2006. Also in 2006 the

writ petition was filed. In such background, it was held that there was no

delay. No doubt in the present case, the facts indicate that there has been

some delay in filing the writ, but taking a liberal view of the matter, we

hold that the writ petitions involving illiterate village folk from a backward

district of Odisha cannot be dismissed on the ground of delay. Further, it

may be noted here that petitioner Nos.9 and 17 of W.P. (C) No.10432 of

2012 had approached this Court on 29.4.2011 along with others by filing

W.P. (C) No.11768 of 2011, i.e., much prior to passing of award in June

2011 and by filing W.P. (C) No.10432 of 2012 along with others they are

pursuing their remedies. This is an additional reason for not dismissing the

present writ petitions on the ground of delay.

17. Issue No.2

Though opp. party Nos.5 and 6 relying on the case of State of

Karnataka and another (supra) pleaded that present writ petitions were
//32//

not maintainable on the ground of res judicata vis-à-vis the earlier writ

petition bearing W.P. (C) No.11768 of 2011. It may be noted here that the

earlier writ petition was filed by the petitioner Nos.9 and 17 along with

others of W.P. (C) No.10432 of 2012. In the earlier case and present case,

i.e., W.P. (C) No.10432 of 2012, prayers are different and there was no

adjudication on merits in the earlier case. Further, in other four writs,

which are being dealt with here petitioner Nos.9 and 17 are not parties. In

such background, we refuse to accept the plea of learned counsel for opp.

party Nos.5 and 6 that the present writ petitions are barred by principle of

res judicata.

18. Issue Nos.3 and 4

It is one of the major contentions of learned counsel for the

petitioners that the petitioners had no knowledge about notifications under

Section 4 (1), as the same were not published in two newspapers and there

was no public notice of substance of such notification given in the locality.

Therefore, they were not in a position to file objection and accordingly Mr.

Mishra, learned counsel for the petitioners submitted that the process of

land acquisition proceeding had been vitiated. In this context, he relied on

the decision in M/s. V.K.M.Kattha Industries Pvt. Ltd. (supra). The

learned Addl. Government Advocate and Mr. Jayanta Das, learned Senior

Counsel have refuted such contentions of the petitioners by stating that

the provisions relating to notification as contained in Section 4 (1) and

declaration under Section 6 of "1894 Act" with regard to various modes of

public notification have been strictly complied with. In this context, both

Mr. Das and Mr.Pattnaik, the learned Addl. Government Advocate pointed
//33//

out that pursuant to publication of notifications under Section 4 (1) of

"1894 Act", 30 objections were received from the villagers of village-

Pudapadar, 25 objections from the villagers of village-Sargunamunda, 45

objections from the villagers of village-Ghantabaheli and 22 objections from

the villagers of village-Mahada. Thus, it is wrong to say that there was no

adequate notifications under Section 4 of "1894 Act".

19. Considering such submissions and relying on the table

indicated under Issue No.1, this Court comes to a conclusion that Section

4 (1) notifications have been published in different modes in accordance

with law. Pursuant to such publication, objections were received from four

villages to which the petitioners belong. Thus, it is not believable that the

writ petitioners had no adequate notice of the acquisition proceedings.

Rather, it shows that they have been negligent by not filing their

objections. Similarly, facts given in the above noted table clearly bear out

that declarations under Section 6 were also published in different modes as

required under law. In the case of M/s. V.K.M.Kattha Industries Pvt.

Ltd. (supra), facts are clearly different as there was no whisper about

publication of substance of notification in the locality as provided under

Section 4 (1) of "1894 Act" which is not the case here. As per the decision

reported in (2000) 7 SCC 296 (Delhi Administration v. Gurudip Singh

Uban and others), it is well settled that the claimants/petitioners who

have not filed objection to Section 4 (1) notification cannot be permitted to

contend that Section 5-A enquiry is vitiated nor can they be permitted to

seek for quashing the declaration under Section 6 of "1894 Act" on that

ground but they can only challenge on the ground that the purpose for
//34//

which the land was acquired was not for a public purpose. Therefore, on

these issues, our finding is that though the petitioners cannot contend that

statutory requirements of Sections 4 and 6 have not been followed on

account of non-publication of the notifications and proclamations in

newspapers and proclamation at the locality, therefore they cannot take a

plea of breach of violation of natural justice; however, they can still take a

plea that originally notifications were not for public purpose.

20. Issue No.5

Though initially the writ petitions had flavour of PILs, however,

after modification of interim order on 19.6.2012 confining the same to the

petitioners only, it is clear that these cases are now private interest

litigations. In such background, it was the duty of the petitioners to point

out/produce the land records in their favour. Initially no such land records

were filed along with writ petitions. However, while filing the rejoinders, the

petitioners have filed land records. Most of these land records filed along

with rejoinder are not legible. However, by way of additional affidavits and

by filing charts dated 9.2.2015 showing details of land sought to be

acquired from the petitioners, the petitioners tried to impress us that in

reality their lands were sought to be acquired. Mr. Mishra, learned counsel

appearing for the petitioners made a fervent plea that since most of the

petitioners are village folks and have collected the records with much

difficulty, the same may be accepted. In such background taking a lenient

view of the matter, in our view, though there are some disputes, it cannot

be said that vis-à-vis the land particulars of the petitioners there exists

serious dispute of facts. In such background, the decision relied on by opp.
//35//

parties 5 and 6 in case of Rajinder Kishan Gupta (supra) with their

emphasis at para-23 will be of no help to them. Accordingly, we are not

going to dismiss these writ petitions on that account.

21. Issue Nos. 6 and 7

Now, coming to the core issue of the case, we have to refer to

Section 3 (f) of "1894 Act". The said Section defines expression "public

purpose". It is an inclusive definition that includes the provision of land for

a corporation owned or controlled by the State. In other words, it means

that when a land is acquired for a Corporation owned or controlled by the

State it can be described as being acquired for public purpose. Section 3 (f)

of "1894 Act" also makes it clear that when land is being acquired for a

company, the same cannot be described as for public purpose. The

expression 'company' has been defined at Section 3 (e) of "1894 Act". Now

let us scan various decisions cited by the parties. In the case of Prativa

Nema (supra), land was acquired by the State Government for the purpose

of a diamond park after signing of MOU with the diamond

merchant/companies dealing with diamond, the Hon'ble Supreme Court

has held that initiation of step for acquisition of land after entering into

MOU would not mean that it was only for private purpose. In this case, the

Hon'ble Supreme Court made it clear that funds from which compensation

was paid played a vital role in deciding whether it was an acquisition under

Part-II of "1894 Act" for public purpose or for a company. It was the source

of funds that decided whether Part-II of "1894 Act" or Part-VII of "1894 Act"

would apply. Referring to Explanation-2 to Section 6 (1) of "1894 Act" it

also made clear that even a minimal contribution made by the Government
//36//

concern could also make the acquisition one for public purpose. In other

words, if compensation money comes from a public fund then it is an

indicator that acquisition proceeding is for a public purpose and in that

case Part-VII of "1894 Act" will have no application. The Supreme Court in

that decision also pointed out that an industry in private sector ultimately

benefits the people and satisfaction of the Government to exercise its

judgment in determining public purpose should not be lightly faulted and

this must remain uppermost in the minds of the Court. The Court should

keep in mind that even when private parties/companies had given advance

payments to government owned corporation, the said money merges with

the fund of Nigam and became public money. Thus, if money came from

such a fund, clearly Part-II of "1894 Act" would apply. In the instant case,

as has been seen under Annexure-H/2, IDCO has deposited the

compensation money with the opp. party No.4 for payment. The

notification under Section 4 (1) clearly shows that the acquisition was

being made at public/governmental cost/money. Further, as per the case

in Sooraram Pratap Reddy (supra), it has been made clear by Hon'ble

Supreme Court that the main distinction between Part-II and Part-VII of

"1894 Act" depends on from which source the cost of acquisition is coming.

When payment is wholly/partly out of public revenue/when the payment of

land oustees is one out of public revenue, then the acquisition is covered

under Part-II, but where total payment is made from the funds of the

company to the land oustees, then same would be covered by Part-VII of

"1894 Act". Here in the instant case, compensation money has gone from

the fund of IDCO, there exists no evidence to show that payment of
//37//

compensation has been made directly by opp. party No.5 to the land

oustees. Further, a perusal of records show that while opp. party No.5 paid

Rs.6,38,16,922/- to IDCO vide letter dated 22.11.2010; IDCO has paid

much more to the tune of Rs.6,80,60,576/- (Annexure-H/2 of W.P. (C)

No.10432 of 2012) to the concerned Tahasildar-cum-LAO, Titilagarh,

Bolangir. In such background, the present case is clearly covered by Part-II

not by Part-VII of "1894 Act". In the above noted decision, Hon'ble Supreme

Court has made it clear that in order to assess public purpose holistic

approach is to be made and parts cannot be split into compartments.

Court can only interfere when there is no public purpose at all or there is

mala fide and colourable exercise of power and this decision has reiterated

that the implication of public purpose is wide and it is for the State to

decide existence of public purpose. All things can be said to be for public

purpose if the public derives any advantage out of the same. The decision

rendered in the case of Nand Kishore Gupta (supra) lays down that

purpose complimentary to public purpose is also a public purpose. Like

earlier decision it makes clear that money coming to the coffers of a

government authority becomes public money. At the same time this

decision lays down another test. To determine whether the case is covered

under Part-II or Part-VII of "1894 Act", this test is whether there has been

total transfer of ownership to the company. In case of such total transfer of

ownership to the company, provisions of Part-VII are attracted. In the

instant case, the facts situation does not show total transfer of land to the

opp. party No.5. As it appears, after the land got vested with the

Government, part of the same has been transferred to IDCO on long term
//38//

basis and on 28.8.2012 IDCO has leased a major portion of the land to

opp. party No.5 for a particular period in order to enable it to establish the

power plant, with a number of conditions including eventualities providing

for termination of lease and right of re-entry and re-possession. In such

factual background, it cannot be said that ownership of the land in

question has been or is being totally transferred to opp. party No.5. Thus,

as per this test also Part-VII has no application to the present acquisition

proceeding. In such background it is clear that as per the above twin tests,

the instant case does not attract Part-VII of "1894 Act", rather Part-II of the

"1894 Act" is attracted. Therefore, it can safely be concluded that no

illegality has been committed in the instant land acquisition proceeding. All

the above noted decisions make it clear that the expression "public

purpose" has a very wide meaning and the same cannot be ignored only

because the land acquired by the State is ultimately going to be leased to a

public limited company like opp.party No.5, which is going to establish a

power plant. Even as per MOU under Annexure-1 series the State

Government is going to get 15% or 12% of the power depending on the

facts indicated therein from opp. party No.5 at a tariff to be determined by

Odisha Electricity Regulatory Commission. Further, the said MOU

contained provision relating to employment of local people under

unskilled/semi-skilled/skilled and Supervisory categories. Lastly, the fact

that the notifications under Section 4 (1) of "1894 Act" clearly show that

land is being acquired for public purpose for industrialization through

IDCO at public cost. These clearly show that land was being acquired for

IDCO, which is a Government of Odisha undertaking. This fact situation is
//39//

further fortified from the fact that after acquisition, government has

transferred the land measuring Ac.392.20 decimals to IDCO on 31.7.2012.

The argument that since the land acquisition proceeding was ab initio

vitiated and therefore, IDCO was brought in to regularize the proceeding is

not correct as the role to be played by IDCO was clearly indicated at the

very beginning in MOU dated 7.2.2009. Thus, in this case public purpose

is well established.

Now, coming to the decisions cited by the petitioners, it may be

stated that the facts of the case reported in AIR 2008 (SC) 261 (Devinder

Singh and others v. State of Punjab and others) are factually

distinguishable and have no application to the present case. In the said

case, the notification under Section-4 indicated that the government of

Punjab wanted to acquire the land for a public purpose namely for setting

up the Ganesha Project, M/s. International Tractors Ltd. at Village Chak

Gujran, Tehsil & Distt. Hoshiarpur. Thus the notification unlike the

present case indicated acquisition, both for public purpose and for a

company and while taking exception to same, the Hon'ble Supreme Court

has made it clear that a declaration has to be made either for a public

purpose or for a company but not for both. Further in the present case,

compensation has been paid out of funds of IDCO. Thus, the present case

is clearly covered under Explanation-2 to second proviso of sub-section (1)

of Section 6 of 1894 Act.

22. The next decisions relied on by Mr. Mishra, learned counsel for

the petitioners are 2011 (Supp.1) OLR 130 (Rajiv Pujari v. State of

Orissa) and 2012 (Supp-II) OLR 349 (Rajkumar Gunawant and another
//40//

v. State of Orissa and others) in favour of his submission that whenever

there is an acquisition in favour of a company whether private or public the

same can be made in accordance with the provision of Chapter-VII of Land

Acquisition Act, but not in terms of Chapter-II of Land Acquisition Act.

With regard to the decision in Rajiv Pujari (supra), a perusal of Para-42 of

the said judgment shows that facts of that case are different. Here, in the

Section 4 (1) notification, there exists no reference to opp. party No.5.

Therefore, the said decision has no application to the present case. So far

as the case of Rajkumar Gunawant (supra) is concerned, here also the

facts are totally different. In that case notice was issued under Section 4 (1)

read with Section 17 (4) of Land Acquisition Act and in Section 4 (1)

notification, the name of M/s. Ariyan Iron Steel Company Ltd. was clearly

indicated unlike the present case. In the instant case, no doubt the

sequence of events would show that process was initiated with the proposal

of opp. party Nos.5 and 6, but by that itself will not make it an acquisition

for company/for private purpose and not for public purpose as discussed

earlier. For this purpose, we have to see several things. Section 4 (1)

notifications issued under "1894 Act" clearly speak about acquisition of

land for public purpose, i.e., for industrialization through IDCO (opp. party

No.2) at public cost. Here, IDCO is in the picture from very beginning, i.e.,

at the stage of signing of MOU on 7.2.2009. The MOU speaks about supply

of some percentage of power to State by opp. party No.5. Further, opp.

party No.5 undertook to provide employment to local people. Here, opp.

party Nos.5 and 6 have not made any direct payment of compensation to

land oustees. The compensation amount was undisputedly made available
//41//

by opp. party No.2 to the Tahasildar-cum-Land Acquisition Officer,

Titilagarh, Bolangir. No doubt, the opp. parties 5 and 6 have paid cost of

land to opp. party No.2. However, as per settled principle of law, such

contribution merged with the funds of IDCO and since the compensation

amount has been deposited by IDCO, it is no more open to dispute that the

land has been acquired at public cost. It is equally well settled that money

going from coffer of Government Corporation like IDCO is public money.

Thus, it makes the acquisition in the instant case, an acquisition for public

purpose. Hence, the acquisition has been rightly made under Part-II of

"1894 Act". Besides the above doctrine of merger as enunciated by the

Hon'ble Supreme Court, it is further to be noted that in the present case

there is no total transfer of ownership of land to opp. party No.5. Here,

undisputedly, the land has been acquired by State Government and out of

the same, the Government has transferred Ac.392.22 decimals to the

IDCO. The IDCO on its part had leased Ac.392.22 decimals to opp. party

No.5. In such background, relying on the decision in Nand Kishore Gupta

(supra), it can safely be said that since there is no total transfer of

ownership of land to opp. party No.5, Part-VII of "1894 Act" has no

application to the present case. For all these reasons, we are of the view

that Part-II of "1894 Act" has been correctly applied to the present case.

23. Issue No.8

Now, the contention of learned counsel for the petitioners vis-

à-vis "1980 Act" requires to be discussed. With regard to role of IDCO, it

was contended by learned counsel for the petitioners that acquisition

process was initiated by the State Government to acquire the land for opp.
//42//

party No.5-company and subsequently IDCO was brought into picture in

order to regularize the acquisition. Mr. Mishra further submitted that

notification dated 4.8.2009 (Annexure-F/6 filed in W.P. (C) No.10432 of

2012) had no relevance as the area could be notified as industrial area only

after acquisition was made and not before acquisition and by the time said

notification was published, the area in question had not been acquired.

According to him by such publication the opp. parties have made an

attempt to bring the acquisition within the purview of "1980 Act". Mr. Das,

learned Senior Advocate had submitted that MOU dated 7.2.2009 clearly

referred to IDCO and even in absence of notification for establishment of

industrial area/industrial estate, IDCO could request for acquisition of

land within the parameters of "1980 Act". A reading of "1980 Act" shows

that it nowhere restricts function of IDCO only for managing notified

industrial estates and developing notified industrial areas. A reading of

Sections 14 and 15 of "IDCO Act" would show that it has a number of

functions to discharge. The functions of IDCO are very broad under Section

4 (i) of "1980 Act". Its functions cannot be confined to what has been

delineated under Sections 14 (ii) (a) and 14 (ii (b) only. This has been made

clear by the Full Bench judgment dated 30.6.2015 referred to earlier.

Similarly, under Section 15 (a) of "1980 Act", it has got the power to

acquire lease, exchange or otherwise transfer of any property held by it on

such conditions as may be deemed proper by the Corporation. As per

Section 15 (b), IDCO has the power to take on lease and to execute works

as may be necessary for the purpose of carrying out its duties and

functions. Thus, IDCO has got both power to take land on lease and to
//43//

lease out the same for carrying out its duties and function. Section 14 (ii)

either jointly with corporate body or with the government or local. Thus,

even without notification dated 4.8.2009 under Annexure-F/6, under

Section 31 of "1980 Act", it has got power to request the government for

acquiring the land on its behalf, which can be put to various use as

indicated in Sections 14 and 15 of "1980 Act". As explained earlier such

land can be leased out by IDCO. Here after the case of opp. party No.5 was

recommended by SLSWCA meeting held on 16.10.2008; the MOU was

signed on 7.2.2009. In the said MOU, it was clearly indicated that

Government would acquire the required land and hand over the required

land to opp. party No.5 through IDCO and opp. party No.5 agreed to pay

cost of land and other charges to IDCO. Thus from very beginning IDCO

was there in the picture. Further, vide Annexure-E/2 series filed in W.P.

land to the governmental authorities for industrial development. Once such

request is made, the same should be deemed as is being made for public

purpose under Section 31 of the "1980 Act". It is important to note here

that the requisition under Annexure E/2 series nowhere contains any

reference to opp. party No.5. In tune with the same, Section 4 (1)

notifications were issued by the government with regard to all four villages.

All these things would again make it clear that IDCO was in the picture

from the very beginning and the land has been acquired as per the

requisition of IDCO in tune with Section 31 of "1980 Act" and IDCO has
//44//

done no illegality in leasing the land in question to opp. party No.5 for

establishing a coal based power plant.

24. Now to the other two decisions cited by Mr. Mishra, learned

counsel for the petitioners. So far as reliance of Mr. Mishra on interim

order reported in 2012 (1) ILR Cuttack 19 (Nishakar Khatua and five

others v. State of Orissa and four others) is concerned, it may be noted

here that the relevant writ application, i.e., W.P. (C) No.14884 of 2011 was

dismissed on 26.8.2013 with all interim orders vacated. Thus, the interim

order can be of no help to the petitioners, which ceased to exist after

26.08.2013. Relying on the decision reported in 2012 (1) OLR 436

(Raghbir Singh Sehrawat v. State of Hariyana and others), Mr. Mishra

submitted that before acquiring private land, the State and/or the agency

or instrumentalities should as far as possible use the land belonging to

the State for specified purpose. If the acquisition of private land becomes

absolutely necessary, then the concern authorities must strictly comply the

relevant statutory rules and the rules of natural justice. In the instant

case, the petitioners have nowhere pointed out in details that despite

existence of Government land in the locality, the Government went for

acquisition of private land. Further, as indicated earlier, here the

acquisition has been done in tune with principles of natural justice as

notifications under Sections 4 and 6 of "1894 Act" were duly published.

25. For all these reasons, we answer the issue Nos.1,2,4 and 5 in

the negative, thus in favour of the petitioners; issue No.3 in negative, thus

in favour of opp. parties, issue No.6 in positive in favour of opp. parties.

Issues Nos.7 and 8 in negative, thus in favour of opp. parties.
//45//

Thus, in the net result, the writ petitions are dismissed and

accordingly all interim orders stand vacated. No cost.

.................................
Biswajit Mohanty, J.
Pradip Mohanty, J.

I agree.

................................. Pradip Mohanty, J.

High Court of Orissa, Cuttack Dated 13th July, 2015/bns

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