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IN THE HIGH COURT OF ORISSA
V. Gopala Gowda, B.N. Mahapatra, JJ.
NISHAKAR KHATUA AND OTHERS - APPELLANT
Versus
STATE OF ORISSA AND OTHERS - RESPONDENT
Misc. Case No. 8071 of 2011
Decided On : 09-09-2011
LAND ACQUISITION - PUBLIC PURPOSE - ACQUISITION OF LAND FOR PRIVATE COMPANY - PROCEDURE - PART VII OF LAND ACQUISITION ACT, 1894 AND COMPANIES (LAND ACQUISITION) RULES, 1963 - WAIVER OF SECTION 5A RIGHT OF LAND OWNERS - EMERGENCY CLAUSE - SECTION 17(2) - INTERPRETATION - DELAY AND LACHES - PUBLIC INTEREST LITIGATION - LOCUS STANDI - CLASS ACTION.
Fact of the Case:
The State Government issued notifications under Sections 4 and 6 of the Land Acquisition Act, 1894 (L.A. Act) to acquire lands in favor of the proposed Steel Plant of M/s. POSCO India Pvt. Ltd. (POSCO). The acquisition proceedings were initiated at the instance of the Orissa Industrial Infrastructure Development Corporation (IDCO), a statutory Corporation, to acquire lands in favor of POSCO, a Company registered under the Companies Act, 1956. The petitioners, who were the owners of the lands located at villages covered under the impugned notifications, filed a writ petition challenging the acquisition proceedings on various grounds, including that the acquisition of land in the name of POSCO through the Corporation was not permissible in law as the acquisition of land was in favor of a Private Company. The petitioners also filed a Misc. Case seeking interim reliefs, including a stay on the acquisition proceedings.
Finding of the Court:
The Court held that the acquisition of land in favor of POSCO through the Corporation was not permissible in law as the acquisition of land was in favor of a Private Company. The Court further held that the waiver of the statutory right of the land owners u/s 5A of the L.A. Act by the State Government by resorting to emergency provision of Section 17(4) of the L.A. Act was a colourable and mala fide exercise of power by the State Government there being no emergency as provided in Section 17(2) in respect of the acquisition of land in favor of POSCO Company for the establishment of proposed Steel Plant. The Court also held that the impugned notifications u/s 6 were published beyond one year from the date of publication of notification u/s 4(1) in respect of the land covered under Annexure-2 series. The Court further held that the awards passed by the Land Acquisition Officer were void ab initio and they were not legal and valid as no notice u/s 9 was issued and served upon the petitioners and other land owners before passing awards by determining the market value of their acquired land and that the awards have been passed beyond the period of two years. The Court also held that the acquisition of land for a Private Limited Company at its own cost can only be done under Part VII of the L.A. Act and not under Part-II of the Act. The Court further held that the writ petition was maintainable as 'class action' litigation as the petitioners had made out a prima facie case for grant of interim prayer and that the balance of convenience was in their favour.
Issues: 1. Whether the acquisition of land in favor of POSCO through the Corporation was permissible in law? 2. Whether the waiver of the statutory right of the land owners u/s 5A of the L.A. Act by the State Government by resorting to emergency provision of Section 17(4) of the L.A. Act was valid? 3. Whether the impugned notifications u/s 6 were published beyond one year from the date of publication of notification u/s 4(1) in respect of the land covered under Annexure-2 series? 4. Whether the awards passed by the Land Acquisition Officer were void ab initio? 5. Whether the acquisition of land for a Private Limited Company at its own cost can only be done under Part VII of the L.A. Act and not under Part-II of the Act? 6. Whether the writ petition was maintainable as 'class action' litigation?
Ratio Decidendi: 1. The acquisition of land in favor of POSCO through the Corporation was not permissible in law as the acquisition of land was in favor of a Private Company. This is because Section 3(f)(iv) of the L.A. Act expressly excludes 'acquisition of land for Companies' from the definition of 'public purpose' in the Act. The acquisition for companies is governed by Part VII of the L.A. Act read with Companies (Land Acquisition) Rules, 1963 and not by Part II of the L.A. Act. 2. The waiver of the statutory right of the land owners u/s 5A of the L.A. Act by the State Government by resorting to emergency provision of Section 17(4) of the L.A. Act was not valid as there was no emergency as provided in Section 17(2) in respect of the acquisition of land in favor of POSCO Company for the establishment of proposed Steel Plant. 3. The impugned notifications u/s 6 were published beyond one year from the date of publication of notification u/s 4(1) in respect of the land covered under Annexure-2 series. This is in violation of the proviso to Section 6(1) of the L.A. Act which requires the declaration notification to be published within one year from the date of publication of the preliminary notification under Section 4(1). 4. The awards passed by the Land Acquisition Officer were void ab initio as no notice u/s 9 was issued and served upon the petitioners and other land owners before passing awards by determining the market value of their acquired land and that the awards have been passed beyond the period of two years. 5. The acquisition of land for a Private Limited Company at its own cost can only be done under Part VII of the L.A. Act and not under Part-II of the Act. This is because Section 44B of the L.A. Act limits the acquisition of land in favor of a Private Company for the purpose of erection of dwelling-houses for workmen of the company as provided u/s 40(1)(a). 6. The writ petition was maintainable as 'class action' litigation as the petitioners had made out a prima facie case for grant of interim prayer and that the balance of convenience was in their favour.
Final Decision: The Court allowed the writ petition and quashed the impugned notifications issued under Sections 4 and 6 of the L.A. Act. The Court also granted the interim reliefs sought by the petitioners in the Misc. Case.
JUDGMENT :
V. Gopala Gowda, C.J. - The petitioner nos. 1 to 6 are the owners of the lands located at villages Dhinkia, Govindpur, Bhuyanpal, Polanga, Bayanala Kandha, Nolia Sahi and Nuagaon covered under the impugned notifications Annexure-2 series issued under Sections 4 and 6 of the Land Acquisition Act. They have filed the present writ petition on their behalf and on behalf of the other land owners whose lands are covered under the said notifications and who have no access to justice seeking the following reliefs urging various facts and legal contentions.
(i) admit and allow this writ application with costs;
(ii) declare/hold that the land acquisition proceedings initiated under and pursuant to Annexure-2 series hereto are bereft of jurisdiction and are ab initio void and non-est in the eyes of law and accordingly, quash the same with exemplary costs with consequent direction to return any land forcibly and illegally taken pursuant to Annexure-2 series; and
(iii) direct/order that the possession, nature, character and use of the concerned land owners in villages Dhinkia, Govindpur, Bhuyanpal, Polanga, Nolia Sahi, Bayanala Kandha and Nuagaon (affected by the Annexure-2 series hereto) shall not be altered (and accordingly maintain status quo), pending disposal of this writ petition; and
(iv) pass such other orders/directions as may be deemed fit and proper (including appropriately moulding the reliefs) in the bona fide interest of justice.
2. In the said writ petition, Misc. Case No. 8071 of 2011 has also been filed praying for the following interim reliefs urging various facts and placing reliance upon the documents produced in support of the writ petition.
(i) admit and allow this misc. application; and
(ii) direct/order that no pursuant and consequential actions/steps shall be taken pursuant to the notifications as at Annexure-2 series to the writ application, pending disposal of the writ application; and
(iii) direct/order that further operation of the orders/notifications as at Annexure-2 series shall remain halted pursuant to an order of stay against the said orders/notifications, pending disposal of the writ petition; and
(iv) direct/order that status quo as on date shall be maintained regarding possession, right, title, interest, nature, character and use of the lands covered by the orders/notifications as at Annexure-2 series to the writ petition, pending disposal of the writ petition; and
(v) pass such other order/directions as may be deemed fit and proper in the bona fide interest of justice.
3. Relevant brief facts are stated for the purpose of examining as to whether the petitioners herein have made out a prima facie case for granting the prayers made in the Misc. Case as extracted supra by this Court during the pendency of the writ petition.
4. The State Government has issued the impugned notifications under Sections 4 and 6 of the Land Acquisition Act (hereinafter called the L.A. Act') to acquire the lands in favour of the proposed Steel Plant of M/s. POSCO India Pvt. Ltd. (hereinafter called in short 'POSCO'). The acquisition proceedings have been started at the instance of the Orissa Industrial Infrastructure Development Corporation (hereinafter called in short 'the Corporation'), a statutory Corporation having its registered office at IDCO Towers, Janpath, Bhubaneswar to acquire lands in favour of POSCO, a Company registered under the Companies Act, 1956 having its registered office at Fortune Towers, Chandrasekharpur, Bhubaneswar represented by its Managing Director who is opposite party no.4 in the writ petition. The Corporation made requisition to the District Collector of Jagatsinghpur to acquire the land for the purpose of establishing the proposed Steel Plant by POSCO. Accordingly, Section 4 notifications were issued to acquire the land of the villages covered in the impugned notifications for the public purpose in favour of the POSCO Company to establish its Steel Plant in the acquired land. The case of the petit
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