# ANIL AGARWAL FOUNDATION ETC. ETC v. STATE OF ORISSA AND ORS

- **Citation:** [2023] 8 S.C.R. 969
- **Court:** Supreme Court of India
- **Decided:** 2023-04-12
- **Case number:** Civil Appeal Nos. 1144-1146 of 2011
- **Bench:** M. R. Shah, Krishna Murari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/anil-agarwal-foundation-etc-etc-v-state-of-orissa-and-ors-37835
- **Pages:** 57

## Headnote

Land Acquisition Act, 1894 - ss. 4(1), 6, 44B - Land
Acquisition Rules, 1963 - rr. 3 & 4 - Acquisition Proceedings -
Allotment of land - To Private Company - For setting up of
University - Undue Favour to Company - Non-compliance of
Mandatory Provisions - Doctrine of Public Trust - Violation of -
Appellant, a private company at that time, made a representation to
the Govt to grant land to set up a University - Necessary steps were
taken by the Govt for allotment of land - However, the Law
Department opined that the land can be acquired only for a Public
Company under the 1894 Act - Pursuant to which, appellant
company passed resolution to change the status from Private
Company to Public Company and intimated the same to Govt. -
Thereafter, Land Acquisition notifications u/s 4(1) of the Act were
issued for 6917.63 acres - Writ Petition was filed in the High Court
challenging the entire acquisition proceedings - Division Bench of
High Court allowed the Petition and held that the entire proceeding
was in flagrant violation of the statutory provisions of the Act -
High Court quashed the acquisition proceedings by observing that
the public interest was affected and there was violation of rule of
law - On appeal, held: Initiation of the acquisition proceedings
was by the Vedanta Foundation and thereafter by the Anil Agarwal
Foundation, which admittedly at the relevant time and as on
19.07.2006 was a private company - It was the case of appellant
that it successfully converted into the public company on 23.11.2006
and it increased number of members from 3 to 7 and in terms of
Section 44 of the Companies Act, 1956, it amended its Articles of
Association to delete the restriction on free transferability of the
shares and the same has been acknowledged by the Registrar of
Companies (ROC) by acknowledgment dated 21.02.2007 and
03.03.2011 - However, even the subsequent acknowledgment by
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[2023] 8 S.C.R.
the Registrar of Companies on 21.02.2007 and 03.03.2011 was
much after s.4(1) notification which were issued between 13.12.2006
to 21.08.2007 - Therefore, legally, the appellant was not converted
to public company at the relevant time - At the relevant time, when
the company was a private company, in view of the bar under s.44B of the 1894 Act, the lands in question could not have been sought
to be acquired by the appellant company - Subsequent conversion
from private company to public company was an attempt to get out
of the statutory provision under the Act, 1894, which is mala fide
exercise on the part of the appellants - Even there was noncompliance of mandatory provisions under rr.3 and 4 of the Rules,
1963 and therefore, the entire acquisition proceedings for the
beneficiary company was vitiated - There was also non-application
of mind by the State Government on environmental aspects and
passing of two rivers from the acquired lands in question - How the
maintenance of the rivers etc. can be handed over to the beneficiary
company - If the lands in question are continued to be acquired by
the beneficiary company, the control of the rivers would be with the
said private company, which would violate the Doctrine of Public
Trust - Further, there is a Wildlife Sanctuary, just adjacent across
the road to the proposed university and the lands acquired -
Therefore, large-scale construction for establishment of the proposed
university as observed by the High Court will also adversely affect
the Wildlife Sanctuary, entire Eco system and the ecological
environment in the locality - Even otherwise, there is non-application
on part of the State Government on the requirement of the lands by
the beneficiary company - From the material on record, it appears
that undue benefits were proposed / in fact offered and given to the
beneficiary company providing undue largesse - It is not appreciable
why the Government offered such an undue favour to one trust/
company - Thus, the entire acquisition proceedings and

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 [2023] 8 S.C.R. 969
969
ANIL AGARWAL FOUNDATION ETC. ETC.
v.
STATE OF ORISSA AND ORS.
(Civil Appeal Nos. 1144-1146 of 2011)
APRIL 12, 2023
[M. R. SHAH AND KRISHNA MURARI, JJ.]
Land Acquisition Act, 1894 - ss. 4(1), 6, 44B - Land
Acquisition Rules, 1963 - rr. 3 & 4 - Acquisition Proceedings -
Allotment of land - To Private Company - For setting up of
University - Undue Favour to Company - Non-compliance of
Mandatory Provisions - Doctrine of Public Trust - Violation of -
Appellant, a private company at that time, made a representation to
the Govt to grant land to set up a University - Necessary steps were
taken by the Govt for allotment of land - However, the Law
Department opined that the land can be acquired only for a Public
Company under the 1894 Act - Pursuant to which, appellant
company passed resolution to change the status from Private
Company to Public Company and intimated the same to Govt. -
Thereafter, Land Acquisition notifications u/s 4(1) of the Act were
issued for 6917.63 acres - Writ Petition was filed in the High Court
challenging the entire acquisition proceedings - Division Bench of
High Court allowed the Petition and held that the entire proceeding
was in flagrant violation of the statutory provisions of the Act -
High Court quashed the acquisition proceedings by observing that
the public interest was affected and there was violation of rule of
law - On appeal, held: Initiation of the acquisition proceedings
was by the Vedanta Foundation and thereafter by the Anil Agarwal
Foundation, which admittedly at the relevant time and as on
19.07.2006 was a private company - It was the case of appellant
that it successfully converted into the public company on 23.11.2006
and it increased number of members from 3 to 7 and in terms of
Section 44 of the Companies Act, 1956, it amended its Articles of
Association to delete the restriction on free transferability of the
shares and the same has been acknowledged by the Registrar of
Companies (ROC) by acknowledgment dated 21.02.2007 and
03.03.2011 - However, even the subsequent acknowledgment by
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the Registrar of Companies on 21.02.2007 and 03.03.2011 was
much after s.4(1) notification which were issued between 13.12.2006
to 21.08.2007 - Therefore, legally, the appellant was not converted
to public company at the relevant time - At the relevant time, when
the company was a private company, in view of the bar under s.44B of the 1894 Act, the lands in question could not have been sought
to be acquired by the appellant company - Subsequent conversion
from private company to public company was an attempt to get out
of the statutory provision under the Act, 1894, which is mala fide
exercise on the part of the appellants - Even there was noncompliance of mandatory provisions under rr.3 and 4 of the Rules,
1963 and therefore, the entire acquisition proceedings for the
beneficiary company was vitiated - There was also non-application
of mind by the State Government on environmental aspects and
passing of two rivers from the acquired lands in question - How the
maintenance of the rivers etc. can be handed over to the beneficiary
company - If the lands in question are continued to be acquired by
the beneficiary company, the control of the rivers would be with the
said private company, which would violate the Doctrine of Public
Trust - Further, there is a Wildlife Sanctuary, just adjacent across
the road to the proposed university and the lands acquired -
Therefore, large-scale construction for establishment of the proposed
university as observed by the High Court will also adversely affect
the Wildlife Sanctuary, entire Eco system and the ecological
environment in the locality - Even otherwise, there is non-application
on part of the State Government on the requirement of the lands by
the beneficiary company - From the material on record, it appears
that undue benefits were proposed / in fact offered and given to the
beneficiary company providing undue largesse - It is not appreciable
why the Government offered such an undue favour to one trust/
company - Thus, the entire acquisition proceedings and the benefits,
proposed by the State Government were vitiated by favourism and
violative of Art.14 of the Constitution - High Court was justified in
setting aside the entire acquisition proceedings, which was vitiated
by non-compliance of the statutory provisions under the Act, 1894
and the Rules, 1963 and also vitiated by mala fides and favourism
and is a clear case of the non-application of mind on relevant aspects
- Constitution of India - Art. 14.
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Dismissing the appeals, the Court
HELD: 1. The initiation of the acquisition proceedings was
by the Vedanta Foundation and thereafter by the Anil Agarwal
Foundation, which admittedly at the relevant time and as on
19.07.2006 was a private company having three Directors on its
Board and less than seven members. The initiation of the
proceedings to acquire the identified lands, identified by the
appellant company was in the month of April/June, 2006, which
was followed by the MoU dated 19.07.2006. Therefore, the
relevant date for consideration would be 19.07.2006 and not
13.12.2006 as sought to be contended on behalf of the appellants.
[Para 8.5][1014-F-G, H; 1015-A]
1.2 At this stage, it is required to be noted that even
otherwise the subsequent alleged conversion from private
company to public company was an attempt to get out of the
statutory provision under the Act, 1894. The Law Department
specifically observed that the land cannot be acquired by private
company for the purposes for which the lands were sought to be
acquired, only thereafter the appellants changed the status of
the company from private company to public company. The
aforesaid was a mala fide exercise on the part of the appellants.
[Para 8.6][1015-B-C]
1.3 It is the case on behalf of the appellant that the appellant
successfully converted into the public company on 23.11.2006
and it increased number of members from 3 to 7 and in terms of
Section 44 of the Companies Act, 1956, it amended its Articles of
Association to delete the restriction on free transferability of the
shares and the same has been acknowledged by the Registrar of
Companies (ROC) by acknowledgment dated 21.02.2007 and
03.03.2011 is concerned, it is required to be noted and as
observed hereinabove the relevant date for consideration would
be June, 2006 and in any case 19.07.2006 when the MoU was
entered into. Even the subsequent acknowledgment by the ROC
was on 21.02.2007 and 03.03.2011 even much after Section 4(1)
notification. Therefore, as rightly observed and held by the High
Court legally, the appellant was not converted to public company,
which as such was a Section 25 company and therefore, not a
public company. [Para 8.7][1015-D-G]
ANIL AGARWAL FOUNDATION ETC. ETC. v. STATE OF
ORISSA AND ORS.
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2. From the material on record, the High Court has given
the specific findings that there is a non-compliance of mandatory
provisions under Rules 3 and 4 of the Rules, 1963 and therefore,
the entire acquisition proceedings for the beneficiary company
has been vitiated and there are checks and balances and certain
mandatory procedures and requirements are to be satisfied, more
particularly, when the lands are to be acquired for the company,
the same have to be adhered to and non-consideration of the
relevant aspects, which are mandatory to be considered under
Rule 4 would vitiate the entire acquisition proceedings as the
subjective satisfaction by the State Government has been vitiated
on non-consideration of the relevant aspects, more particularly,
the aspects mentioned in Rule 4. [Para 8.15][1021-C-D]
3. The most important aspect, which is required to be
considered is the non-application of mind by the State Government
on environmental aspects and passing of two rivers from the
acquired lands in question. It is not in dispute that from the lands
in question two rivers namely 'Nuanai' and 'Nala' are flowing,
which as such were acquired by the State Government. How the
maintenance of the rivers etc. can be handed over to the
beneficiary company. If the lands in question are continued to be
acquired by the beneficiary company, the control of the rivers
would be with the said private company, which would violate the
Doctrine of Public Trust. Even requiring the beneficiary company
to maintain the flow of above two rivers may also affect the
residents of the locality at large. It is also required to be noted
that just across the road, there is a Wildlife Sanctuary, which is
just adjacent across the road to the proposed university and the
lands acquired. Therefore, the large-scale construction for the
establishment of the proposed university as observed by the High
Court will also adversely affect the Wildlife Sanctuary, entire Eco
system and the ecological environment in the locality. It is a duty
of the State to protect the Wildlife Sanctuary and it may affect the
entire Eco system and the ecological environment in the locality.
It is also required to be noted that even the distance of the sea
from the proposed Vedanta University is approximately 2000
meters. Merely because the Balukhand Wildlife Sanctuary is
separated from the proposed site by a highway - Puri-Konark
Marine Drive, cannot be a ground to acquire the huge lands for
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the proposed university and as rightly observed by the High
Court, the same will adversely affect the Wildlife Sanctuary and
the entire Eco system and the ecological environment in the
locality. The aforesaid aspects has not at all been considered by
the State Government and/or the Collector and/or the appropriate
authority even while considering the proposal and/or even the
objections under Section 5A of the Act, 1894. [Para 8.17 &
8.18][1022-F-H; 1023-A-D]
4. Even otherwise, there is a non-application on the part of
the State Government on the requirement of the lands by the
beneficiary company. The lands were proposed to be acquired at
the instance of one foundation / company and the State
Government was dealing with the lands belonging to the
agricultural landowners. The Government is holding a public trust
and has to deal with the lands belonging to private landowners,
more particularly, agricultural landowners in accordance with law.
The State Government could not have considered the proposal
from only one beneficiary/trust. There may be other public trusts
/ companies, who might be interested in establishing such
university. Even no proper inquiry seems to have been initiated
by the Government / Collector while considering the proposal by
the beneficiary company. It is required to be noted that initially,
15,000 acres of the agricultural lands was sought to be acquired
for the proposed university. Ultimately, approximately, 8000 acres
of the land belonging to the private landowners / agricultural
landowners came to be acquired. The State Government has also
handed over the possession of approximately 495 acres of land
belonging to the State Government including the Gochar Lands
etc., which could have been used for the other public purpose
and even for the Gochar Lands also. It is not appreciable why the
Government offered such an undue favour in favour of one trust/
company. Thus, the entire acquisition proceedings and the
benefits, which were proposed by the State Government were
vitiated by favourism and violative of Article 14 of the Constitution
of India. [Para 8.19 & 8.21][1023-E-H; 1024-A, G-H]
Delhi Administration vs. Gurdip Singh Uban and Ors.,
(2000) 7 SCC 296: [2000] 2 Suppl. SCR 496; V.
Chandrasekaran and Anr. vs. Administrative Officer and
Ors., (2012) 12 SCC 133: [2012] 10 SCR 603; S.P.
Gupta vs. Union of India, 1981 Supp SCC 87: [1982]
ANIL AGARWAL FOUNDATION ETC. ETC. v. STATE OF
ORISSA AND ORS.
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SCR 365; Bandhua Mukti Morcha Vs. Union of India,
(1984) 3 SCC 161: [1984] 2 SCR 67; Public Union for
Civil Liberties vs. State of T.N., (2013) 1 SCC 585:
[2012] 9 SCR 579; Devinder Singh vs. State of Punjab,
(2008) 1 SCC 728: [2007] 11 SCR 475; City
Montessori School vs. State of U.P., (2009) 14 SCC
253: [2009] 2 SCR 630 and Common Cause, A
Registered Society vs. Union of India and Ors. (1999)
6 SCC 667: [1999] 3 SCR 1279 - referred to.
Case Law Reference
[2000] 2 Suppl. SCR 496
referred to
Para 4.5
[2012] 10 SCR 603
referred to
Para 4.6
[1982] SCR 365
referred to
Para 5.9
[1984] 2 SCR 67
referred to
Para 5.9
[2012] 9 SCR 579
referred to
Para 5.9
[2007] 11 SCR 475
referred to
Para 5.24
[2009] 2 SCR 630
referred to
Para 5.24
[1999] 3 SCR 1279
referred to
Para 5.26
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.11441146 of 2011.
From the Judgment and Order dated 16.11.2010 of the High Court
of Orissa at Cuttack in WP Nos.6863 of 2009, 10325 and 12948 of 2008.
With
Civil Appeal Nos.1148-1150, 1152-1154 And 1161-1169 of 2011.
N. Venkataraman, Sanjay Jain, ASGs, C. Aryama Sundaram,
Prashanto Sen, Rakesh Dwivedi, Sanjay Parikh, Sr. Advs., Dhananjaya
Mishra, P. S. Sudheer, Ms. Abhisree Saujanya, Navneet Dogra, Bharat
Sood, Ms. Shruti Jose, Aryan Rai, Milind Kumar, Vishal Meghwal, Arya
Tripathy, Prashant Bhushan, Pranav Sachdeva, Chinmaya Mishra, Ajit
Pudussery, Satvik Parikh, V.C. Bharathi, Ms. Priyanka Das, Rajat Nair,
H.R. Rao, Arvind Kumar Sharma, Rupesh Kumar, Ms. Nisha Bagchi,
Anukalp Jain, Raghav Sharma, Ms. Swarupama Chaturvedi, Udai
Khanna, Rutwik Panda, Ms. Nikhar Berry, Ms. Anshu Malik, Abhisth
Kumar, Raj Kumar Mehta, Aman Jha, Ms. Babita Yadav, Raman Yadav,
Ms. Shubha Yadav, Gaurav Prakash Shah, Rishi Tutu, Ms. Akansha,
Manoj Rajput, Ms. Ruchi Kohli, Shibashish Misra, Chandan Kumar
Mandal, Advs. for the appearing parties.
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The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned common
judgment and order passed by the High Court of Orissa dated 16.11.2010
passed in Writ Petition Nos. 10325 of 2008, 12948 of 2008 and 6863 of
2009 by which the Division Bench of the High Court has allowed the
said writ petitions and has quashed the land acquisition proceedings in
question including the notifications under Section 4(1) and 6 of the Land
Acquisition Act, 1894 (hereinafter referred to as "Act, 1894") and the
awards passed in the land acquisition proceedings for acquisition of lands
in favour of the appellant - beneficiary company and directed that the
possession of the acquired lands shall be restored to the respective
landowners and on restoration of the possession to the landowners, they
shall refund the amounts received by them as compensation or otherwise
in respect of their lands. 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.
2. At the outset, it is required to be noted that before the High
Court, two writ petitions were filed by the original landowners whose
lands have been acquired and one writ petition was filed by way of
public interest litigation on behalf of the small landholders, who could not
approach the Court and also on behalf of the people of the locality.
2.1 It is required to be noted that the dispute is with respect to the
acquisition of about 6000 acres of land belonging to about 6000 families,
affecting approximately 30,000 people.
3. The facts leading to the present appeals in nutshell are as under:-
3.1 That on 23.06.2006, one Mohit Kumar Rana, Principal, A.T.
Kearney Limited submitted an application before the State Government
stating that M/s. Vedanta Resources Limited is contemplating to set up
a University in Orissa to impart education in under-graduate and postgraduate courses in Engineering, Medicine, Management, General
Science and Humanities etc. It was further stated in the application that
the Group had given a presentation to the Hon'ble Chief Minister of
ANIL AGARWAL FOUNDATION ETC. ETC. v. STATE OF
ORISSA AND ORS.
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Orissa during April, 2006. That after visiting different sites in Orissa,
their team have selected a site on the outskirt of Puri on the Puri-Konark
marine drive to be the place ideal for establishment of the University.
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. It was also
prayed that the Government of Orissa should also coordinate the land
acquisition process by appointment of a Special Land Acquisition Officer.
The Group prayed that they require 1500 acres of land for Phase-I to be
acquired by September, 2006 and the balance by December, 2006.
Thereafter, a Memorandum of Understanding was signed between the
Government of Orissa and Vedanta Foundation on 19.07.2006. The
Government of Orissa confirmed the availability of contiguous land of
about 8000 acres and to make endeavour to provide an additional
contiguous land and other facilities as required by the Foundation.
3.2 That a Private Limited Company incorporated in the name
and style of Sterlite Foundation changed its name to Vedanta Foundation
under section 25 of the Companies Act, 1956 and accordingly fresh
Certificate of Incorporation consequent on change of the name was
issued in July, 2004. 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 along with the proposal before
the Government.
3.3 According to the State, in the meantime, the opinion of the
Law Department was sought on the questions:-
(a) Whether the foundation is an education foundation? and
(b) Whether the land is required to be acquired for public
purpose?
3.4 Thereafter the correspondences took place between the Law
Department and the Revenue and Disaster Management Department.
The Law Department observed that land can be acquired for the
proposed educational scheme under the Act, 1894 if the appropriate
Department of the Government sponsors a Scheme to carry out that.
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Alternatively, the land can be acquired for an educational scheme
sponsored by a Society but with the prior approval of 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. Alternatively, it also opined that the
Administrative Department may verify if acquisition of land can be made
under section 15 of the Orissa Industrial Infrastructural Development
Corporation Act, 1980. After the aforesaid opinion was received, the
Administrative Department was of the view that the second option to go
through IDCO was not feasible and suggested to consider as to whether
the Higher Education Department will sponsor and own the project directly
and whether it would be done through a Society to be framed by the
Higher Education Department.
3.5 Thereafter, it was decided to explore the alternative of the
Private Company to be converted into a public company on which, the
views of the Law Department was again sought. The Law Department
opined that the land can be acquired for a 'Public Company' under the
Act, 1894 in accordance with Part VII. That Vedanta Foundation again
changed its name to Anil Agarwal Foundation. On account of the name
change, a fresh Certificate of Incorporation was obtained from the
Registrar of Companies under Section 23(1) of the Companies Act on
06.09.2006.
3.6 In a meeting of the Board of Directors of Anil Agarwal
Foundation held on 16.10.2006, a resolution was passed to change the
status of the company from a private company to a public company. Anil
Agarwal Foundation intimated the Department of Higher Education of
the change of name and structure of Vedanta Foundation on 01.11.2006.
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. The Collector, Puri,
on the same day, i.e., 24.11.2006, intimated the Joint Secretary, Revenue
Department regarding the change of status to a public company and
also to the Department of Higher Education for revised administrative
approval for acquisition of land for the establishment of Vedanta
University.
3.7 That thereafter notifications under Section 4(1) of the Act,
1894 were issued between 13.12.2006 to 21.08.2007 for 6917.63 acres.
ANIL AGARWAL FOUNDATION ETC. ETC. v. STATE OF
ORISSA AND ORS. [M. R. SHAH, J.]
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The said notifications inter alia indicated that the acquisition was being
conducted in terms of Chapter VII of the Act, 1894. 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.
According to the appellant, after the awards were declared, the
possession was delivered in respect of 3342 acres of acquired land and
the sponsored 495 acres of Government land and the compensation of
Rs. 41.96 crores was also disbursed.
3.8 As a vast tract of lands belonged to the poor, small farmers
and the land so acquired was at a prestigious location and thousands of
families of farmers were affected by the acquisition of such a vast tract
of lands and that too in favour of a private company, which was mala
fide subsequently converted to public company, the writ petitions were
filed before the High Court challenging the entire acquisition proceedings
/ process.
3.9 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 of the Act, 1894.
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3.10 Thereafter, the High Court has passed the following order in
terms of paragraph 69, which is as under:-
"69. 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.
On restoration of the possession to the land owners, they shall
refund the amount received by them as compensation or otherwise
in respect of their lands. We also quash 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. All concerned including
the State Government, the land owners and beneficiary company
shall implement the aforesaid direction at an early date."
3.11 The impugned common judgment and order passed by the
High Court and the operative portion of the order in paragraph 69 of
judgment are the subject matter of the present appeals.
4. Shri C. Aryama Sundaram and Shri Rakesh Dwivedi, learned
senior counsel appearing on behalf of the respective appellants have
vehemently submitted that in the facts and circumstances of the case,
the High Court has materially erred in quashing and setting aside the
entire acquisition proceedings and that too even with respect to the
landowners whose lands came to be acquired, did not challenge the
acquisition proceedings and/or even many of them did not raise any
objections under Section 5A of the Act, 1894.
4.1 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)
It is submitted that notifications under Section 4 of the Act,
1894 came to be issued between 13.12.2006 to 21.08.2007
for 6917.63 acres;
ANIL AGARWAL FOUNDATION ETC. ETC. v. STATE OF
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(ii)
Declarations under Section 6 of the Act, 1894 were issued
for 5619.05 acres, before that the objections under Section
5A of the Act, 1894 were invited;
(iii)
Only 13 landowners, who were the owner of 78.89 acres
submitted their objections; with respect to 3 landowners to
the extent of 25.61 acres, objections came to be accepted
and 10 objections came to be rejected. None of the 10
rejectees had approached any Court with any grievance.
(iv)
That the possession came to be delivered in favour of the
beneficiary in respect of 3342 acres of acquired land.
(v)
Possession was also delivered in respect of 495 acres of
Government land.
(vi)
It is submitted that therefore, the possession of total 3837
acres was handed over to the beneficiary.
(vii)
That the beneficiary has already disbursed the compensation
of Rs. 41.96 crores.
(viii)
It is submitted that in addition to compensation, ex-gratia
amount of Rs. 25.13 crores was also disbursed.
(ix)
It is submitted that, thus, 3837 persons have received the
compensation as above.
It is submitted that in view of the above facts and circumstances,
the High Court has materially erred in setting aside the entire acquisition
proceedings.
4.2 It is further submitted that there were a total of 9 writ petitioners
before the High Court. One of them was an objector under Section 5A,
however, his land was dropped from the land acquisition proceedings.
He is, therefore, now only a pro forma party before this Court.
4.2.1 It is submitted that one of the original writ petitioners was a
land loser, but not an objector under Section 5A. His land was also
dropped from the land acquisition proceedings at the stage of Section 6.
4.2.2 Five of the original writ petitioners are land losers, but not
objectors under Section 5A.
4.2.3 Two of the writ petitioners are PIL petitioners.
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4.3 It is submitted that therefore, as on today, there are a total of
7 land losers before this Court, who hold approximately 11.52 acres,
however, none of them filed objection under Section 5A. Learned senior
counsel appearing on behalf of the beneficiary has stated at the Bar that
the appellant is now willing to exclude their land from the acquisition
proceedings, even though they did not file Section 5A objection.
4.4 It is further submitted that in fact so far as the PILs before
the High Court are concerned, the same ought not to have been entertained
by the High Court in view of the earlier dismissal of PIL being Writ
Petition (C) No. 6981 of 2008 which was filed by the PIL writ petitioner.
4.5 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.
It is submitted that as observed and held by this Court in the case of
Delhi Administration Vs. Gurdip Singh Uban and Ors., (2000) 7
SCC 296, all personal nature objections are deemed to be waived.
4.6 Relying upon the decision of this Court in the case of V.
Chandrasekaran and Anr. Vs. Administrative Officer and Ors.,
(2012) 12 SCC 133, it is further submitted that if the acquisition is
challenged by one land loser, other cannot take advantage of it if he has
not filed objection under Section 5A of the Act, 1894.
4.7 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 submitted that
therefore, when the acquisition has attained finality, awards have been
made, possession taken and compensation disbursed then setting aside
the entire acquisition proceedings is not desirable.
4.8 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. He has taken us to the
various correspondences and the orders passed converting the beneficiary
company to public limited company.
ANIL AGARWAL FOUNDATION ETC. ETC. v. STATE OF
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4.9 Relying upon those documents, it is vehemently submitted that
therefore at the time when the Section 4 notifications were issued, the
beneficiary company was already converted to a public company.
Therefore, the acquisition in favour of the beneficiary company was
absolutely in consonance with the provisions of the Act, 1894. It is further
submitted that the acquisition of the lands in question in favour of the
beneficiary trust/ company was after a detailed consultation and taking
into consideration the object and purpose of the trust / company in the
field of education etc. It is submitted that the beneficiary company /
trust wants and/or desirous of establishing a very renowned university in
the State of Orissa.
4.10 It is further submitted by the learned senior counsel appearing
on behalf of the beneficiary company that if the impugned judgment and
order passed by the High Court is not interfered with by this Court, there
shall be serious and adverse impact in implementing the appellant's project.
4.11 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. It is submitted that the Vision Plan postulates a University
catering to 1,00,000 students and the University would be built in a phased
manner. It is submitted that in Phase I, colleges in the field of Medicine,
Liberal Arts, Science & Technology, Agriculture and Food Processing
and Institute of Design would be started.
4.12 It is submitted that eminent academicians are already on the
advisory/academic board of the project. It is further submitted that
adequate safeguards have been provided in Section 41 agreement that
the land would be utilized for the University, and in case any portion of
the land is not utilized for the University purpose, then the said portion
reverts to the State Government.
4.13 It is further submitted by the learned senior counsel appearing
on behalf of the respective appellants that even after the acquisition of
the lands in question, the rehabilitation measures have been taken as per
the policy of the State Government, which are as under:-
"1.
R&R Policy of State Govt. 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
may be noted that site of the R&R Colony has been chosen
by the displaced families themselves.
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2.
The project affected families are entitled to a preference
for employment in the University.
3.
Appellant has agreed to appoint one graduate from all land
losing families as an employee.
4.
Appellant has agreed to engage landless agriculture
labourers as unskilled construction workers. In the event
the same is not provided, then a subsistence allowance of
Rs. 1500 per month would be paid to each family from date
of possession to 2010.
5.
Appellant has agreed to bear the expenditure for students
from land losing families to study at DAV School, Puri."
4.14 It is further submitted by the learned senior counsel appearing
on behalf of the appellants that in the present case, there is a compliance
of Part VII of the Act, 1894 and the Land Acquisition (Companies)
Rules, 1963 ( hereinafter referred to as "Rules, 1963"). 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.
(ii)
Enquiry under Section 40(2)/ Rule 4 has been carried out.
(iii)
Agreement has been signed by the Foundation as mandated
under Section 41.
(iv)
Section 44B not applicable since the Appellant is a public
company."
4.15 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. It is submitted that in
the present case, the land was not only identified by the State Government
(and, therefore, not by the appellant beneficiary), but done so after
substantially undertaking the enquiry as envisaged under Rule 4. In
support of his above submission, Shri C. Aryama Sundaram, learned
senior counsel appearing on behalf of the appellant trust / beneficiary
has prayed to consider the following dates and events:-
ANIL AGARWAL FOUNDATION ETC. ETC. v. STATE OF
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"(i)
April 2006- A presentation was made by Vedanta Resources
Ltd. to the Chief Minister of Odisha for setting up of a
University in Orissa. (Note: No Particular land identified
by Vedanta in this presentation)
(ii)
April-June, 2006 - It was known to the State Govt. that the
Vedanta group had made similar representations to few
other States as well. Since the proposal presented a huge
opportunity for the State, it started the process of identifying
suitable locations on its own, under the leadership of its top
officers, i.e. 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. finally zeroed
in on Puri.
(iv)
16.06.2006- The Office of the Chief Minister of Orissa
convened a meeting of Secretaries of various departments
in relation to the establishment of the University. At the
meeting, State Govt. made a detailed presentation to the
Appellant on the land identified by it in Puri. In the said
presentation, considerations regarding the suitability of the
land, the extent thereof, the habitation thereunder etc. have
been considered in detail. [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. On this basis, a letter was
written to the Office of the Chief Minister by AT Kearney
(a Consultant appointed by Vedanta) stating that Vedanta
was interested in setting up a University in Puri.
(vi)
26.06.2006- as per direction of the State Government, the
Addl. District Magistrate, Puri and the Tahasildar, Puri made
further visit to the project area.
(vii)
During the aforesaid exercise:
a)
Addl. District Magistrate, Puri and Secretary, Works
also made aerial survey of the site. [Note: this also
shows Compliance with Rule 4(1)(i)]
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b)
Number of informal group meetings in the village
between the Collector and other State Govt. officers
before the acquisition proceedings were initiated. 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
of agricultural land; inferior, unproductive and fallow
land. [Note: this also shows Compliance with Rule
4(1)(vi)]
f)
Most of the land oustees of the project area were
contacted either in meetings by the Appellants to make
negotiations for payment of reasonable price. [Note:
this also shows Compliance with Rule 4(1)(ii)]
(viii) 19.07.2006 - after being satisfied about the direct and indirect
benefits to be accrued to the state, an MoU was signed to
establish the proposed university. [Note: Compliance with
Rule 4(1)(v)], namely, determination to ensure that the
Appellant is able to utilize the land expeditiously
(ix)
09.08.2006- The State Govt. appointed a Special LAO &
special officer for R&R in order to coordinate the land
acquisition process.
(x)
29.11.2006 - the State Government, upon being satisfied,
has accorded Administrative Approval for the project.
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(xi)
Minutes of the 7 Core Committee meetings between
02.09.2006 and 07.02.2008 also record substantial
compliance of Rule 4."
4.16 It is further submitted that therefore, there is a compliance
with Rules 3(1) and 3(2). It is submitted that even the Rule 4 has been
complied with subsequently.
4.17 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.