By the impugned common judgment and order, the High Court has also quashed the grant of Government Land in favour of the beneficiary company under Rule 5 of the Government Land Settlement Rules with a direction to the State Government to resume the lands which were granted to the beneficiary company by way of lease, the appellant – the beneficiary company and others have preferred the present appeals. It was further stated in the application that the Group had given a presentation to the Hon’ble Chief Minister of Orissa during April, 2006. Therefore, it was, inter alia, prayed that the Government of Orissa should make available 15,000 acres of contiguous land around Nuanai, in the district of Puri in Bhubneswar-Puri-Konark marine drive. After signing of the MOU, necessary steps were taken by the State Government for allotment of the land to the Foundation and the Vice President of the Vedanta Foundation was directed to deposit 20% of the estimated investment cost, which was subsequently reduced to 10% and necessary direction was issued to Collector, Puri to obtain administrative approval of the project from the Higher Education Department and to produce the approval alongwith the proposal before the Government.
So observing, the Law Department opined that under the Act, 1894, land can be acquired for public purpose provided Government sponsors to carry out an educational scheme or by a registered society with prior approval of the Government. On 24.11.2006, Anil Agarwal Foundation confirmed to the Secretary, Department of Higher Education that the status of the company had been changed from a private to a public company. That thereafter a declaration under Section 6 of the Act, 1894 was issued for 5619.05 acres after seeking the objections under Section 5A of the Act, 1894. 9 By the impugned judgment and order, the Division Bench of the High Court has allowed the writ petitions including the public interest litigation by holding that :- (i) the acquisition proceedings from the stage of initiation till the date of purported awards which in fact and in law not awarded and that the alleged taking over the possession of the lands is in flagrant violation of the statutory provision of Sections 4, 5A, 6, 9, 10, 11, 12, (2), 23, 24, read with the provisions under Part – VII of the Act, 1894.; (ii) the initiation of the acquisition proceedings in favour of the beneficiary company, on the requisition made by the Vedanta Foundation by misrepresenting fact and playing fraud on the State Government, has vitiated the entire acquisition proceedings.; (iii) that the public interest at large is affected and there is violation of rule of law.; (iv) the Public Interest Litigation was maintainable, which was on behalf of small land holders who have no sustenance to approach this Court to fight litigation.; (v) therefore, the acquisition proceedings in its entirety in respect of persons who have approached this Court and even who have not approached this Court are liable be quashed for the reason that there is flagrant violation of the provisions
In the result, we allow the writ petitions, quash the impugned land acquisition proceedings including the notification under Sections 4(1) and 6 and the award passed in the Land Acquisition Proceedings for acquisition of land in favour of the beneficiary company and direct that the possession of the acquired lands shall be resorted to the respective land owners irrespective of the fact whether they have challenged the acquisition of their lands or not.
1 Learned senior counsel appearing on behalf of the respective appellants have prayed to consider the following facts in support of their submissions that the impugned judgment and order passed by the High Court setting aside the entire acquisition proceedings is not warranted:- (i) (iv) That the possession came to be delivered in favour of the beneficiary in respect of 3342 acres of acquired land. 2.1 It is submitted that one of the original writ petitioners was a land loser, but not an objector under Section 5A. 5 It is further submitted by the learned senior counsel appearing on behalf of the appellants that as observed hereinabove except few, none of the said land losers submitted any objections under Section 5A. 7 It is further submitted by the learned senior counsel appearing on behalf of the respective appellants that in the present case the acquisition proceedings have attained finality, inasmuch as, after the declaration under Section 6 of the Act, 1894 and after holding inquiry under Section 11, the awards were declared and most of the landowners were paid the compensation and even the possession to the extent of 3342 acres was handed over to the beneficiary.
It is further submitted by the learned senior counsel appearing on behalf of the beneficiary that though initially the lands were sought to be acquired by a private company, however, thereafter the company was converted into a public limited company after following due procedure under the provisions of the Companies Act. 11
It is submitted that the appellant – beneficiary has drawn up a Vision Plan for over 3837 acres of land, which is currently in their possession. followed whereunder an R&R Colony of 65.17 acres within the acquired land has been set apart to accommodate the 230 displaced families.
It is submitted that in the present case, Part VII has been complied with as under:- “1. Part VII has been complied with as: (i) Section 39/40 consent has been given by the State Government. 15 It is further submitted that insofar as Rules, 1963 are concerned, it is the case on behalf of the appellant that a Rule 4 enquiry is relevant only in the case when the land is identified by the company and not by the State Government and thereafter an application is made by the company to acquire the said identified land. the Chief Secretary, and carried out a detailed inquiry towards identifying land keeping in mind the considerations under Rule 4 (iii) After looking at various options, the State Govt. [ Note : this also shows Compliance with Rule 4(1)(i) and (iii)] (v) 23.06.2006 – Pursuant to the aforesaid presentation by the State, the Appellant made independent visits to the site proposed in the presentation. This was done to discuss various aspects of land acquisition including suitability of land, and to appraise the villagers of the purpose of land acquisition; [ Note : this also shows Compliance with Rule 4(1)(i) and (iii)] c) Visits were also made for the purpose of ascertaining that minimum displacement was taking place out of the one various alternative locations d) Determination was also done to see that the Appellant is able to utilize the land, which were frozen, expeditiously; at various reviews, the requirement of land was scaled down to 6000 acres; [ Note : this also shows Compliance with Rule 4(1)(iv) and (v)] e) Exercise was also undertaken to find out that the land is rain fed; not irrigated; not much good quality agricultural land; inferior, unproductive and fallow land. 17 Learned senior counsel appearing on behalf of the State Government has vehemently submitted that in the present case, there is a compliance of Sections 4, 5A, 6, 9, 11 and 12 of the Act, 1894.
No provision in the Act for serving show cause notice to the interested persons for inviting objections u/s. Land Acquisition Officer has given notice to the objectors for hearing u/s 5-A. In addition to compensation under the LA Act, 1894, ex-gratia amount of Rs. 19 It is submitted that there are a number of private institutions and organizations which are on the same side of the highway as the proposed university, along with the entire village of Beldala with a large population. Present appeals are vehemently opposed by Shri Prashant Bhushan, learned counsel appearing on behalf of the respective respondents – original writ petitioners. 2 It is submitted that the land acquisition proceedings including the notifications under Sections 4(1) and 6 and the awards passed in the land acquisition proceedings for acquisition of land in favour of the beneficiary company have rightly been quashed by the Hon’ble High Court by the impugned judgment and order, which does not require any interference of this Court in exercise of the powers under Article 136 of the Constitution of India.
[Clause 5 of the MoU] 5.5 It is submitted that even, the Section 41 agreement executed between the Government of Orissa and the Anil Aggarwal Foundation also shows that the land was identified by the company and not by the Government as the said agreement says that the Company intended to establish Vedanta University near Puri and had applied to the Government of Orissa for the acquisition of the land described in the schedule thereunder, written and delineated on the map annexed therein whereon the company intended to establish Vedanta University. It is submitted that even, as per the said MoU, the Government agreed to provide 4-lane road from Bhubaneshwar city to the proposed site and the Government of Orissa shall make the land use/ zoning plan in the 5 km radius from the university boundary only after Consultation with Vedanta. It is submitted that the Government also promised to assist the Foundation in obtaining NOC from SPCB and all clearances from the Central Government. It is submitted that while accepting the request by the Vedanta Foundation, the Government did not consider the prior track record and did not consider why the Vedanta group has been repeatedly indicted by various Governments / authorities / courts/tribunals and agencies for severe violations of mining laws, environmental laws, causing pollution, and violation of human rights in its mining projects in Orissa, Tamil Nadu, Goa and Karnataka. It is submitted that therefore, the High Court has rightly entertained the Public Interest Litigations holding that the initiation of the acquisition proceedings in favour of the beneficiary company, on the requisition made by the Vedanta Foundation by misrepresentation of facts and by playing fraud on the State Government, which has vitiated the entire acquisition proceedings. State of T.N., (2013) 1 SCC 585, it is submitted that the High Court has rightly entertained the Public Interest Litigation petitions and has rightly quashed the entire acquisition proceedings. It is submitted that herein, the resolution, dated 23.11.2006, altering the Articles of Association by the appellant to convert it into a public company and increasing the members to 7 was not approved by the Central Government as per the License issued to it under Section 25 and hence, the company never became a public company. 9, 10 and 12 of the affidavit filed by the Registrar of Companies dated 15.10.2008 filed before the High Court.
Further, Section 12(5) of Act, 1956 as to the accountability of its members could not be ascertained even for Section 25 registered company. It is submitted that as public company is any company other than a private company, share holding pattern is a must to examine the compliance of proviso to Section 3(c) of 1956 Act. It is submitted that even for public purpose, the Act mandates to pay 80% before entering / taking possession, but for private company, the aforesaid Agreement mandates not to pay more than 66.67% which is impermissible. 18 It is further submitted that even otherwise, admittedly, at the time of execution of MoU with the Appellant on 19.07.2006, the appellant was a private company and hence, the proposal ought not to have been entertained at all but should have been rejected outrightly.
It is further submitted that even no inquiry was conducted under the Rules, 1963, which has been established and proved from the response by the Special Land Acquisition Officer to the RTI query dated 27.05.2008. 22
It is submitted that the appellant’s argument that enquiry under Rule 4 of the Rules, 1963 was not required / relevant in the present case as the land was identified by the Government and not by the company, does not hold water. It is submitted that the same is in complete contravention and breach of Rule 4 (4)(ii) of the Rules, 1963, which provides that no declaration shall be made by the appropriate Government under Section 6 of the Act unless the agreement under section 41 of the Act has been executed by the company. 5.23 It is further submitted by the learned counsel that in the present case, right from the very beginning and from the time of signing of the MoU, the Government of Orissa had made its mind that the land will be available to Vedanta even though the mandatory requirements of Act, 1894 and the Rules, 1963 were yet to be complied with, which might have led to the possible failure of the acquisition as the enquiries provided therein (2008) are meant to exclude acquisition of lands if certain mandatory requirements are not met with.
Also Read: https://newslaw.in/case-type/civil/acquisition-of-land-and-deemed-lapse-under-the-act-2013/
5.25
It is further submitted by Shri Prashant Bhushan, learned counsel that in the present case, the inquiry and the objection under Section 5A of the Act, 1894 have not been properly complied with and/or adhered to.
It is submitted that in the case of Common Cause, A Registered Society, (1999) 6 SCC 667, this Court held that natural resources such as air, water, forest, lakes, rivers and wildlife are public properties entrusted to the Government for their safe and proper use and proper protection and the doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. It is submitted that the entire exercise was hurriedly done to convert the appellant company from private to purportedly public company after it was already decided to acquire land for it and after the Law department during acquisition proceedings observed and opined that the land may be acquired only for a public company and thereby hurriedly the Articles of Association and Memorandum of Association were changed in violation of the conditions of the license granted to the appellant company and without first informing the concerned authority of the change, which shows that the exercise was expressly taken up to defeat the object of Part VII of Act, 1894. It is submitted that in the present case, as submitted hereinabove, approximately 6000 families and 30,000 people are likely to be affected, if the land is taken away, then it will cause them great hardship which can never be compensated in monetary terms. Issue 3 Whether the State Government on the requisition of Vedanta Foundation could have initiated the acquisition proceedings in favour of the beneficiary company by issuing notifications under Section 4(1) of the LA Act without complying with the mandatory provisions of Section 39, 41 and 42 of the Land Acquisition Act read with Rules 3(2) and 4 of the Land Acquisition (Companies) Rules, 1963? for its consideration and compliance of the above provisions of the Act can dispense with the Rules 3 & 4 of the Land Acquisition (Companies) Rules, 1963 for declaration under Section 6 of the LA Act?
Whether the beneficiary company has executed Memorandum of Understanding as required under Section 41 of the Land Acquisition Act with the State Government giving undertaking as provided under sub sections (1), (2) & (3) of the said section of the Act and the same is published in the official gazette as required under Section 42 thereof? 11 Whether awards are passed by the Collector in compliance with Sections 9, 10 and 11 of the LA Act and award notices as required under Section 12 (2) of the Act are issued and served upon the owners/interested persons and thereafter possession of the lands has been taken by the State Government under Section 16 of the LA Act and transferred in favour of the company? 12(A) & (B) are answered in favour of the appellants and for violation of any provisions of Land Acquisition Act as well as Land Acquisition (Companies) Rules, 1963? Whether the Anil Agarwal Foundation, The Beneficiary Company, is a public company in terms of the definition under section 3(1)(IV) of the Companies Act, 1956 and can the private guarantee limited company be converted to public company under section 25 of the Companies Act? Issue
No 2 Whether the State Government can acquire the lands in question in favour of the beneficiary company in exercise of its eminent domain power for the purpose of establishment of the proposed Vedanta University (not in existence) in view of Section 44-B of the Land Acquisition Act, 1894? ii)
Also Read: https://newslaw.in/case-type/civil/c-a-no-003481-003481-2022/
No enquiry has been made by the State Government in terms of Rule-4 read with Rule 3 of the Land Acquisition (Companies) Rules, 1963 iii) Acquisition of lands by publishing Section 4(1) Notifications in favour of the beneficiary company is vitiated in law for the reason that before putting the provisions of Section 4 to 16 and 18 to 37 in order to acquire land no previous consent of the State Government under Section 39 was there and such consent shall not be given unless the company has executed the agreement under Section 41 of the Act.
Issue No 4 (A) Whether the Collector was required to conduct an inquiry as contemplated under Section 5-A of the Land Acquisition Act even in the absence of filing objections to the show cause notice along with preliminary notification proposing to acquire the lands of the land owners/interested persons in favour of a beneficiary company? Issue No 5 (A) Whether the owners/ interested persons of the land in question have waived or acquiesced their rights for not filing objections to the preliminary notifications? Whether the State Government has complied with Rules 3(2) and 4 of the Rules, 1963 and the Collector has submitted his report to the State Government and the same is Section 6 has been made by the State Government without consulting the Land Acquisition Committee to be constituted under Rule-3 of the Land Acquisition (Companies) Rules, 1963. ii) There is non-compliance with Section 39 of the Act as there is no formal agreement executed under Section 41. Whether awards are passed by the Collector in compliance with Sections 9, 10 and 11 of the LA Act and award notices as required under Section 12 (2) of the Act are issued and served upon the owners/interested persons and thereafter possession of the lands i) Notices under Sections 9 and 10 were not issued to the owners/interested persons for fling claim statement to award compensation is not done. ii) Requiring the beneficiary company to maintain the flow of the above two rivers would also affect the residents of the locality at large. i) Acquisition proceedings from the stage of initiation till the date of awards which in fact in law is not awarded and the alleged taking over possession is in violation of the Land Acquisition (Companies) Rules, 1963.
2 Now, so far as the submission on behalf of the appellants that the High Court has seriously erred in quashing and setting aside the entire acquisition proceedings as only few landowners submitted the objections under Section 5A of the Act, 1894 and that the High Court has materially erred in entertaining and allowing the Public Interest Litigation petitions is concerned, at the outset, it is required to be noted that in the present case, the State Government has in utter disregard to the relevant provisions of the Act, 1894 and the Rules, 1963 had acquired a huge tract of land to the extent of approximately 7000 acres of agricultural lands belonging to the various landowners, namely, 6000 families and thus involving displacement of approximately 30,000 people. The manner in which the State Government has dealt with and acquired the agricultural lands belonging to 6000 families and as it in fact favoured the private limited company, which was subsequently alleged to have been converted to a public company and that too without holding any proper inquiry to the need etc., we are of the opinion that the High Court has rightly entertained the writ petitions including the Public Interest Litigation petitions and merely because some persons did not file the objections under Section 5A and/or accepted a meagre compensation and/or even accepted the compensation cannot be a ground to set aside the acquisition proceedings, which as such rightly observed by the High Court, is vitiated by not following the statutory provisions under the Act, 1894 as well as the Rules, 1963. Under the circumstances, it cannot be said that the High Court has committed any error in entertaining the writ petitions including the Public Interest Litigation petitions. Public interest litigation is brought before the court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation, but it is intended to promote and vindicate public interest which demands that violation of constitutional or legal rights of large number of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and un- redressed. The rule of law does not mean that the protection of the law must be available only to a fortunate few or that the law should be allowed to be prostituted by the vested interests for protecting and upholding the status quo under the guise of enforcement of their civil and political rights. Moreover, these self-styled human rights activists forget that civil and political rights, priceless and invaluable as they are for freedom and democracy, simply do not exist for the vast masses of our people. We, in India, should on this occasion study the human rights / declared and defined by the United Nations and compare them with the rights available in practice and secured by the law of our country.” There is indeed close relationship between civil and political rights on the one hand and economic, social and cultural rights on the other and this relationship is so obvious that the International Human Rights Conference in Teheran called by the General Assembly in 1968 declared in a final proclamation: ” Since human rights and fundamental’ freedoms are indivisible, the full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible.” Of Course, the task of restricting the social economic order so that the social and economic rights become a meaningful reality for the poor and lowly sections of the community is one which legitimately belongs to the legislature and the executive, but mere initiation of social and economic rescue programmes by the executive and the legislature would not be enough and it is only through multi-dimensional strategies including public interest litigation that these social and economic rescue programmes can be made effective. The state or public authority against whom public interest litigation is brought should be as much interested in ensuring basic human rights, constitutional as well as legal, to those who are in a socially and economically disadvantaged position, as the petitioners who brings the public interest litigation before the court. Union of India and others, AIR 1982 SC 149, the apex Court held as under: “We would therefore hold that any member of public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision. Gupta (supra) and number of its earlier decisions, held as under: “It is thus clear that only a person acting bona fide having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. are all standing in a long serpentine queue for years with the fond hope of getting into the courts and having their grievances redressed, the busybodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either for themselves or as proxy or others or for any other extraneous motivation or for glare of publicity break the queue muffing their face by wearing the mask of public interest litigation, and get into the courts by filing vexatious and frivolous petitions and thus criminally waste the valuable time of the courts and as a result of which the queue standing outside the doors of the Court never moves which piquant situation creates a frustration in the minds of the genuine litigants and resultantly they lose faith in the administration of our judicial system”. We would briefly deal with important cases decided by this court in the first phase after broadening the definition of “aggrieved person” 36. The Government and its officers must welcome public interest litigation because it would provide them an occasion to examine whether the poor and the downtrodden are getting their social and economic entitlements or whether they are continuing to remain victims of deception and exploitation at the hands of strong and powerful sections of the community and whether social and economic justice has become a meaningful reality for them or it has remained merely a teasing illusion and a promise of unreality, so that in case the complaint in the public interest litigation is found to be true, they can in discharge of their constitutional obligation root out exploitation and injustice and ensure to the weaker sections their rights and entitlements.
The Court asserted that, in realization of this constitutional obligation, “it has all incidental and ancillary power including the power to forge new remedies and fashion new strategies designed to enforce the fundamental rights”. The sort of remedies sought from the Courts in the public interest litigation goes beyond award of remedies to the affected individuals and groups. In view of the clear pronouncement of law in the aforesaid cases by the Apex Court this Court has to interfere with the acquisition proceedings and grant of Government lands in favour of the Beneficiary Company to protect the public interest. Sanjit Mohanty, learned Senior Counsel that the petitioners have abused the process of this Court claiming that they are public spirited persons, is also untenable in law for the reason that they have established the case that interest of the public of the locality will be affected and also there will be violation of the Rule of the law if the acquisition of lands and grant of leasehold rights in respect of Government lands in favour of beneficiary Company is held to be not legal and valid and therefore we have to hold that there is no abuse of the process of this Court by the petitioners in approaching this Court espousing the public cause and public interest as the act of the state Government is in contravention of the Notification issued by the State Government way back in the year 1984 declaring certain lands nearby the lands acquired, as Wild life Sanctuary and the documents produced by the petitioners to prove the fact that two river are flowing on the acquired lands. The disposal of the earlier writ petition filed by nine persons referred to supra upon which reliance is placed by the learned Senior Counsel on behalf of the Company in support of his contention that the writ petitioners in the PIL have abused the process of this Court is not tenable in law, as this Court has not decided the case on merits by answering the substantial issues that arose for its consideration. If the PIL petitions are not allowed there will be a continuing wrong of the State Government and the beneficiary Company, which would violate the human rights of the residents of the locality where the lands are acquired and land owners/ interested persons. We have answered all the points framed in these petitions against the State Government and the beneficiary Company by recording our reasons and we have held that the acquisition proceedings from the stage of initiation till the date of purported awards which in fact and law not awarded and the alleged taking over the possession of the lands is in flagrant violation of the statutory provision of Section 4, 5A, 6, 9, 10, 11, 12, (2), 23, 24, read with the provisions under Part – VII of the Land Acquisition Act, 1894.
The Supreme Court, while answering the legal questions that arose for consideration, held that prior approval of the Government is required under Section 44-A but as the same has not been followed, the entire acquisition proceedings was quashed. We direct that as a result of quashing of the land acquisition proceedings including the notification as aforesaid, the possession of the lands shall be restored to the respective landowners irrespective of the fact whether they had challenged the acquisition of their lands or not. Even from the presentation made to the Chief Minister at the relevant time and the relevant clauses of MoU dated 19.07.2006 and even the Section 41 agreement executed between the Government of Orissa and the Anil Agarwal Foundation, it can be seen that the land was identified by the company and not by the Government of Orissa. 5
Case Title: ANIL AGARWAL FOUNDATION ETC.ETC. Vs. STATE OF ORISSA (2023 INSC 361)
Case Number: C.A. No.-001144-001146 / 2011
