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2007 Supreme(Ori) 809
2007 (Supp.-II) OLR — 1021
B. P. DAS AND M. M. DAS, JJ.
M/s. MESCO KALINGA STEEL LIMITED...Petitioner
Versus
Orissa Industrial Infrastructure Development Corporation and others...Opp. Parties
W.P.(C) No. 2453 of 2005
(Date of Judgment : 30.10.2007)
For Petitioner:M/s. S. C. Parija, B. Baug, A. Pal, A. C. Das & B. D. Pradhan
For Opp. Parties:Addl.Government Advocate (for O.P. No.2)
M/s. J. Patnaik, B. Mohanty, T. K. Pattnaik, P. K. Nayak, S. Pattanayak & A. Pattanayak (For O.P. No.1)
M/s. S. Pal, A. N. Das, A. N. Pattanaik, N. Sarkar & E.A. Das (For O.P. No.3)
M/s. S. B. Mukherjee, S. Mitra, Mrs. Roopa Mitra & C. Choud¬hury, B. Mohanty, S. Mohanty, D. R. Das and D. Chotray (For O.P. No.4)
Headnote:1. CONSTITUTION OF INDIA, 1950 - Arts. 226 and 227 - Allotment of land on lease - Possession handed over - Notice for payment of defaulted amount - For non-payment land allotted was resumed back - Whether in the facts and circumstances of the case the IDCO, which is an instrumentality of the State could have taken possession or for that matter could have re-entered into the land without taking recourse to the established principles of law ? - Possession can be resumed by the Government only in a manner known to or recognized by law - It cannot resume possession otherwise than in accordance with law - If a person/juristic person is in actual possession of the land even as a trespasser or encroacher, the real owner cannot evict such trespasser/encroacher by extra judicial methods upon use of force - The true owner in such a case has to take recourse to such procedure as recognised by law for evicting him/it - It is more so when the owner is the State or an instrumentality of the State - Held, action on the part of the IDCO which is neither in conformity with the terms as stipulated in the letter dated 25.1.95 nor in accordance with the Industrial Infrastructure Development Corporation Act and is also contrary to the settled position of law - Orders quashed - Direction issued.(Paras - 23 to 29)
2. CONSTITUTION OF INDIA, 1950 - Art. 226 - Question of resumption of land - Determination by writ Court - Representation of petitioner having been rejected the present writ petition - On facts it cannot be contended that the question of resumption of land by the IDCO cannot be the subject-matter of an application under Art. 226 of the Constitution - If the writ Court comes to a finding that the petitioner is entitled to a relief, the same can be moulded to do complete and effective justice to the party.
(Para - 17)
3. RES JUDICATA - Fundamental rule of the principle of res judicata is that if between the same parties, a lis/any issue has been finally adjudicated by a competent Court of law, the said lis/issue cannot be re-adjudicated in a subsequent proceeding and will be barred by the prinicple of res judicata - In the present case nothing was decided in previous writ petition - Principle of res judicata/constructive res judicata has no application to the facts of the present case. (Para - 16)
4. CONSTITUTION OF INDIA, 1950 - Art. 226 - Land allotted - Resumption - Judicial review - In contractual matters relating to grant of lease and resumption of land, the power of judicial review of a writ Court is not restricted - State or an instrumentality of the State cannot interfere with the rights of a citizen, unless it is in accordance with the rule of law which authorizes them to do so - Extraordinary jurisdiction under the Article exercised by the High Courts are for ensuring that rule of law prevails and no Tribunal or public authorities exceed their limit of jurisdiction while taking a decision - If a decision of a public authority or an instrumentality of the State or the State, suffers from arbitrariness and discrimination contrary to rules of fair play and natural justice, such decision can be interfered with by the exercise of the extraordinary power under Art. 226 of the Constitution - In the present case held, action of the IDCO in resuming the land in favour of the petitioner can be judicially reviewed by High Court by exercise of its power under Article 226 of the Constitution.
(Paras - 20 to 22)
JUDGMENT
M. M. DAS, J. : M/s. MESCO Kalinga Steel Limited (in short, ‘the MESCO’) the petitioner herein, has approached this Court in the present writ petition for a second time, inter alia, chal¬lenging the notice dated 4.7.2003 issued by the opp.party No.1-IDCO directing the petitioner to deposit the balance amount of Rs.22,84,48, 890.00 and for execution of the lease deed, notice dated 25.7.2003 issued by the IDCO cancelling the deed of deliv¬ery and resuming the land back, letter dated 26.9.2003 issued by the IDCO refusing to withdraw the notice of resumption dated 25.7.2003 and the order dated 25.2.2004 issued by the IDCO re¬jecting the petitioner’s representation dated 20.1.2004 pursuant to the order passed by this Court in an earlier writ petition.
2. For just appreciation of the case, it is necessary to go into the facts of the case, in brief, which are as follows :-
The Government of Orissa being desirous of utilizing its enormous natural resources and in order to promote industrializa¬tion of the State, decided to enter into a Memorandum of Under¬standing with the MESCO group of industries for establishment of a Steel Plant in the name of MESCO Kalinga Steel Ltd. (petition¬er) to be located within the Kalinga Industrial Complex at Duburi in the district of Jajpur. The State Government, accordingly, decided to allot an area of approximately 2500 acres of land to the petitioner, which would be necessary for putting up the Steel Plant with a proposed capacity of approximately 1.5 million tones per annum.
The petitioner’s case is that the State Government took a decision to enter into a Memorandum of Understanding for allot¬ment of 2500 acres of land for establishment of the Steel Plant keeping in view the fact that MESCO Group of Industries had already been allotted with the adjacent land, for establishment of a Steel Plant in the name of Mid East Integrated Steels Limit¬ed, so as to allow synergy of operation as would be evident from Annexure-2 to the writ petition. By letter dated 22.7.1994, the State Government requested the petitioner to furnish documents with regard to the project for establishing a Steel Plant so as to enable the State Government to invest Rs.50.00 crores as promoter’s equity in MESCO Kalinga Steel Limited vide Annexure-11 to the writ petition. Subsequently, in its letter dated 5.1.1995, the State Government in its Department of Steel and Mines inti¬mated the petitioner that the Government have been pleased to order that the cost of 2500 acres of land amounting to Rs. 25.00 crores at the rate of Rs.1.00 lakh per acre would be payable by the petitioner and it will not be treated as equity participation of the State Government in the proposed Steel Plant. In the said letter, it was stipulated that the cost of land is to be paid as mentioned in the revised terms and conditions to be communicated shortly, vide Annexure-3 to the writ petition. Pursuant to the aforesaid letter, the State Government in its Department of Steel and Mines by letter dated 2.2.1995 intimated the petitioner that the State Government has already allotted 2500 acres of land ear-marked for the petitioner’s company at Kalinga Nagar Industrial Complex for establishment of the Steel Plant and as the Govern¬ment has already withdrawn from participation as equity share holder in the petitioner-company, the land cost of Rs.25.00 crores is to be paid by the petitioner. In the said letter, the petitioner was also intimated that the IDCO - opp.party No.1 has been advised to hand over 2500 acres of land to the petitioner for establishment of the Steel Plant on long term lease basis as per the stipulations laid down in the revised terms and condi¬tions issued by the Department of Steel and Mines in its letter dated 2.2.1995 (Annexure-4). The revised terms and conditions in the said letter are general terms and conditions to be imposed on the companies who have availed incentive from the State Govern¬ment for establishment of Steel Plant, wh
