1. Unauthorized occupation of industrial plot — Regularization by Corporation — Challenge to allotment by other allottees under the Orissa Industrial Infrastructure Development Corporation Act, 1980. (Para 3 , 4 , 5 )
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2018 Supreme(SC) 151
SUPREME COURT OF INDIA
S.A. BOBDE, L. NAGESWARA RAO, JJ.
Odisha Industrial Infrastructure Development Corporation Limited – Appellant
Versus
Pitabasa Mishra & Ors. – Respondent
Civil Appeal No.2269 of 2018 (Arising out of S.L.P. (Civil) No.8427 OF 2011)
WITH
Sri Saisankar Associates, Represented by Proprietor, Shri Satyanarayan Mohanty – Appellant
Versus
Pitabasa Mishra & Ors. – Respondents
Civil Appeal No.2270 of 2018 (Arising out of S.L.P. (Civil) No.9478 OF 2011)
Decided On : 19-02-2018
Important Points
IMPORTANT POINTS
There is no question of acquiring Government land.
Framing of regulations is not sine qua non for land being dealt with by the Corporation.
Auction is not the only mode for disposal of public property.
When an action is taken in pursuance of Court directive, bar of any policy will not apply.
There is no question of acquiring Government land.
Framing of regulations is not sine qua non for land being dealt with by the Corporation.
Auction is not the only mode for disposal of public property.
When an action is taken in pursuance of Court directive, bar of any policy will not apply.
Subject
Land Acquisition - Regularization of Encroachments
Act Referred
Headnote
(a) Orissa Industrial Infrastructure Development Corporation Act, 1980 – Section 31, 33 – land belonging to Government – No question of acquisition – Section 33 not applicable. (Para 13, 15)
(b) Orissa Industrial Infrastructure Development Corporation Act, 1980 – Section 59 – Framing of regulations – Instantly no regulations framed – Encroachment regularized – Held, framing of regulations not sine qua non for land being dealt with by the Corporation – Appellant has the power even in the absence of regulations. (Para 20)
(1968) 1 SCR 767; (1985) 2 SCC 16; (1986) 4 SCC 667 – Relied upon
(c) Public land – Regularisation of encroachment – Done under policy of appellant-Corporation without auction – Policy not challenged – Auction being not the only mode for disposal of public property, held, action not impermissible. (Para 24)
(2012) 10 SCC 1 – Relied upon
(d) Public land – Regularisation of encroachment – High Court directing appellant-Corporation to consider regularization of encroachment in 2008 – Held, bar of 2008 policy not applicable to regularization done. (Para 25)
Facts of the case:
M/s. Sai Sankar Associates (Respondent No.7) an unauthorized occupant of an extent of 14 decimals of land which is equivalent to 6300 sq.ft. in the Commercial Estate at Rourkela and carrying on a small scale industry since 1996 made representations dated 28th September, 1996, 27th January, 1999 and 25th July, 2002 seeking regularization of the industrial plot which was in their unauthorized occupation.
Due to inaction of the Appellant-Corporation Respondent No.7 filed Writ Petition No. 6969 of 2008 seeking a direction to regularize the land which was in its occupation. The High Court directed the Appellant-Corporation to consider and dispose of the representation.
The Board approved the proposal to regularize the land.
The Respondent Nos. 1 to 6 challenged the regularization Order and sought a direction to quash the allotment of land made in favour of Respondent No.7.
The High Court allowed the Writ Petition and set aside the order passed by the Appellant-Corporation in favour of Respondent No.7.
Finding of the Court:
There is no infirmity in regularization of the encroachment.
Result: Appeals allowed.
Legal Category Hierarchy
- administrative law
-
constitutional law
-
article 14
- fairness requirement in state action (Para 23)
-
article 14
Table of Contents
2. Validity of regularization without formal regulations — Requirement of public auction for public land disposal — Applicability of statutory sections governing land acquisition and disposal. (Para 5 , 6 , 9 , 11 )
3. Land transferred by Government differs from acquired land — Absence of regulations does not preclude statutory power — Auction is not the sole constitutional mandate for land disposal. (Para 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 23 )
4. Statutory power conferred subject to rules is exercisable in the absence of rules unless the statute expressly makes framing of rules a condition precedent. (Para 18 , 19 , 20 )
5. High Court judgment set aside — Appeals allowed — Regularization of industrial plot upheld. (Para 26 )
6. Does the absence of regulations prevent a statutory authority from exercising powers conferred subject to rules?
No. Framing of rules is not a condition precedent to the exercise of power expressly and unconditionally conferred by statute unless the statute expressly provides so. The expression subject to the rules means in accordance with the rules, if any. (Para 17 , 18 , 19 , 20 )
7. Is a public auction the only constitutionally mandated method for the disposal of public land or natural resources?
No. Auction is an economic choice and a price discovery mechanism, not a constitutional mandate. While preferable, other methods of alienation are valid unless they are patently unfair and violate Article 14 of the Constitution. (Para 23 )
8. Does the procedure for disposing of acquired land under Section 33 apply to Government land transferred to the Corporation under Section 32?
No. Land acquired by the State Government at the request of the Corporation is governed by Section 33, whereas Government land transferred to the Corporation for development is covered by Section 32. (Para 13 , 14 , 15 )
9. Can a subsequent policy barring regularization affect a request for regularization made prior to the policy change and directed for consideration by a court?
No. The bar under a newer policy is inapplicable if the regularization process was initiated based on prior representations and pursuant to a court direction to consider those representations. (Para 25 )
JUDGMENT
L. NAGESWARA RAO, J.
Leave granted in both the Special Leave Petitions.
These Appeals are filed against the judgment of the High Court of Orissa dated 24th December, 2010 in Writ Petition (C) No. 12408 of 2009 filed by Respondent Nos. 1 to 6 by which the allotment of an industrial plot in the Commercial Estate at Rourkela in favour of M/s. Sai Sankar Associates (Respondent No.7) was set aside.
2. For the sake of convenience, the parties would be referred to as arrayed in Special Leave Petition (Civil) No.8427 of 2011 filed by Odisha Industrial Infrastructure Development Corporation Limited (for short “the Corporation”/“Appellant- Corporation”).
3. M/s. Sai Sankar Associates (Respondent No.7) was an unauthorized occupant of an extent of 14 decimals of land which is equivalent to 6300 sq.ft. in the Commercial Estate at Rourkela and was carrying on a small scale industry since 1996. The Respondent No.7 made representations dated 28th September, 1996, 27th January, 1999 and 25th July, 2002 seeking regularization of the industrial plot which was in their unauthorized occupation. Due to the failure of the Appellant-Corporation in considering the said representations, Respondent No.7 filed Writ Petition No. 6969 of 2008 in the High Court of Orissa seeking a direction to regularize the land which was in its occupation. The High Court by a judgment dated 13th May, 2008 directed the Appellant to consider and dispose of the representation expeditiously, preferably within a period of three months from the date of production of the certified copy of the order.
4. Pursuant to the Order passed by the High Court dated 13th May, 2008 in Writ Petition (Civil) No. 6969 of 2008 the regularization of the industrial plot was considered in the 74th Board Meeting of IDCO held on 20th September, 2008. The Board approved the proposal to regularize land measuring 6300 sq.ft. on payment of Rs.7,89,350/-. The Respondent Nos. 1 to 6 herein challenged the Order dated 20th September, 2008 by filing Writ Petition (Civil) No. 12408 of 2009 and sought a direction to quash the allotment of land made in favour of Respondent No.7.
5. It was submitted on behalf of Respondent Nos. 1 to 6 who filed the Writ Petition before the High Court that they were allottees of shops-cum-residences in the Commercial Estate at Rourkela. They contended that the outright sale in favour of Respondent No.7 for carrying on Saree Polishing and Dyeing of Garments and Fabric Unit would not be conducive to their business activity as the unit of the Respondent No.7 was environmentally hazardous. It was urged by Respondent Nos.1 to 6 before the High Court that they were entitled for issuance of notice as provided in sub Section 4 of Section 34 of the Orissa Industrial Infrastructure Development Corporation Act, 1980 (hereinafter referred to as ‘the Act’). They further submitted that regularization of the industrial plot was not permissible without regulations being framed under the Act. They further argued that, in any event, public property could not have been transferred without conducting a public auction. Finally, it was submitted on behalf of the Respondent Nos.1 to 6 that the allotment of 6300 sq.ft. of land was made for a paltry sum of Rs.7,89,350/- whereas the market value was around Rs.2,00,00,000/-. The Appellant’s case before the High Court was that the regularization of 6300 sq.ft. of land was made at the auction price for a similarly situated plot at the rate of Rs.54,44,000/- per acre as against the prevailing concessional industrial rate of Rs.18,21,000/- per acre. The price fixed for the plot of land which was regularized was in accordance with the prevalent policy decision of the Appellant. A submission was made on behalf of the Appellant before the High Court that Sections 33 and 34 of the Act are not applicable to the regularization of the industrial plot in question.
6. It was contended on behalf of Respondent No.7 before the High Court that Respondent Nos. 1 to 6 wer
