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HIGH COURT OF ORISSA, CUTTACK
INDRAJIT MAHANTY & BISWANATH MAHAPATRA, JJ.
Sachalabala Sethy and Other – Petitioners
Versus
Chief Secretary and Chief Development Commission, Orissa & Others – Opposite Parties
W.P. (C) Nos. 6715, 22838, 27628, 30882 of 2011 & 9326, 15042, 17476 of 2009
Decided On : 16.05.2014
The Orissa High Court examined the legality of land acquisition proceedings undertaken by the State Government for the purpose of setting up a thermal power plant by M/s. KVK Nilachal Pvt. Ltd. (KVK). The Court analyzed the provisions of the Land Acquisition Act, 1894 (L.A. Act) and the Industrial Policy Resolution of the State of Orissa, 2007 (IPR 2007) to determine whether the acquisition was for a public purpose and whether it was carried out in accordance with the law.
Fact of the Case:
The State Government issued notifications under Sections 4(1) and 6(1) of the L.A. Act for the acquisition of land in four villages for the thermal power plant project. The petitioners, who were land losers, challenged the acquisition on various grounds, including that it was not for a public purpose, that it was colourable exercise of power by the State Government for the benefit of a private party, and that the Collector failed to assign detailed reasons for each individual case during the hearing under Section 5-A of the L.A. Act.
Finding of the Court:
The Court held that the acquisition of land for the thermal power plant project was for a public purpose as it satisfied the definition of public purpose under Section 3(f) of the L.A. Act. The Court noted that the IPR 2007 declared power plants as infrastructure projects and that the project would provide benefits to the State and its people. The Court also held that the acquisition was not a colourable exercise of power as the State Government had acted in accordance with the provisions of the L.A. Act and the IPR 2007. The Court further held that the Collector had not failed to assign detailed reasons for each individual case during the hearing under Section 5-A of the L.A. Act as the objections raised by the land losers were identical in nature and had been duly considered by the Collector.
Issues: ['Whether the acquisition of land for the thermal power plant project was for a public purpose.', 'Whether the acquisition was a colourable exercise of power by the State Government for the benefit of a private party.', 'Whether the Collector failed to assign detailed reasons for each individual case during the hearing under Section 5-A of the L.A. Act.']
Ratio Decidendi: The Court held that the acquisition of land for the thermal power plant project was for a public purpose as it satisfied the definition of public purpose under Section 3(f) of the L.A. Act. The Court noted that the IPR 2007 declared power plants as infrastructure projects and that the project would provide benefits to the State and its people. The Court also held that the acquisition was not a colourable exercise of power as the State Government had acted in accordance with the provisions of the L.A. Act and the IPR 2007. The Court further held that the Collector had not failed to assign detailed reasons for each individual case during the hearing under Section 5-A of the L.A. Act as the objections raised by the land losers were identical in nature and had been duly considered by the Collector.
Final Decision: The Court dismissed the writ petitions filed by the petitioners, upholding the legality of the land acquisition proceedings undertaken by the State Government.
JUDGMENT
INDRAJIT MAHANTY, J.
1. The present batch of writ applications has come to be filed by the petitioner Charidesa Krusak Surakhya Sangha and several land losers seeking to challenge the validity of the acquisition of land made by the Industrial Development Corporation of Odisha (hereinafter referred to as the IDCO) for the purpose of setting up a thermal power plant by M/s. KVK Nilachal Pvt. Ltd. (hereinafter referred to as the KVK).
2. At the commencement of hearing, we requested the learned counsel for the respective parties in this batch of cases to make out categories on the issues raised and to bunch the various cases in each such category. Accordingly, on the consent of the learned counsel representing the various parties, four categories were made in the following manner. (The respective cases which fall under each category are indicated under each head).
Category - I
Challenge to Land Acquisition Proceedings undertaken by the State Government for acquiring the land in four villages namely, Rahangol, Dalua, Khanduali and Kandarei, P.S. Gurudijhatia, Tahasil Athagarh, District Cuttack on the requisition made by IDCO for the purpose of setting up of a thermal power plant by KVK.
1. W.P. (C) No. 15042 of 2009
2. W.P. (C) No. 30882 of 2011
3. W.P. (C) No. 6715 of 2011
4. W.P. (C) No. 22838 of 2011
5. W.P. (C) No. 17476 of 2009 & RVPET No. 81 of 2010
6. W.P. (C) No. 9326 of 2009
Category - II
& III
Challenge to the alienation of Government land under the OGLS Act, illegal sale of Government land, illegal sale of SC & ST, Smashan, common land. Challenge to the validity of Notification u/s. 73(c) of the Odisha Land Reforms Act, 1960 as well as challenge to the private purchases made by KVK for its thermal power plant.
8. W.P. (C) No. 2065 of 2010
9. W.P. (C) No. 7303 of 2011
10. W.P. (C) No. 11738 of 2009
11. W.A. No. 211 of 2012
12. W.P. (C) No. 15988 of 2009
13. W.P. (C) No. 27845 of 2011
Category - IV
Challenge to lack of permissions and clearances for construction of the project, lack of forest clearance, lack of wildlife clearance.
14. W.P. (C) No. 9384 of 2012
15. W.A. No. 321 of 2011
16. W.P. (C) No. 30369 of 2011
17. W.P. (C) No. 3926 of 2010
3. For the convenience of adjudication, we have proceeded to deal with the aforesaid cases category-wise and, accordingly, the present judgment is confined to the issues raised in Category-I i.e. challenge to Land Acquisition Proceedings. It would be pertinent to note herein that separate judgment will be delivered for each category of issue raised separately.
4. In the background of the aforesaid challenge it now become essential to take note of certain facts, which are not in dispute. A Memorandum of Understanding (hereinafter referred to as MOU) was signed between the Government of Odisha and KVK on 26.09.2006 and the relevant portion of the said MOU relating to land reads as follows:
“A. Land –
(i) KNPL will require approximately 1000 acres of land for the purpose of setting up the thermal power plant and associates facilities (colony, coal transportation system, water transportation system, power evacuation system, ash disposal and other infrastructural facilities).
(ii) KNPL agrees to fully comply with the stipulations of the Government as per its policy in this regard. For rehabilitation of displaced families, rehabilitation and Resettlement (R&R) package as notified by the State Government as well as any special stipulation relating to scheduled areas as applicable shall be followed.
(iii) The government agrees to acquire the required land as per Clause (i) above and hand over the required land free from all encumbrances to KNPL through Odisha Industrial Infrastructure Development Corporation (IDCO) for the project and allied facilities.
(iv) KNPL agrees to pay the cost of the land to IDCO in case the land is acquired for the purpose and to the Revenue authorities in case the land is Government land along with the rehabilitation cost and other related charges. In case the Project is aband
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