Supreme Court Partially Approves Gujarat Govt's Draft Scheme To Permit Transfer Of Properties Allotted To MPs/ MLAs

The Supreme Court on Friday partially approved the Draft scheme formulated by the State of Gujarat for transfer of plots allotted to MLAs/MPs and/or other high-level functionaries at concessional rates.

A Bench comprising CJI NV Ramana, Justice Surya Kant and Justice Hima Kohli has modified its order dated 2 November 2021 whereby it had stayed any further allotments or transfer of the plots already allotted under the Government Resolutions in question, without the leave of the High Court.

While permitting the transfer of plots under three clauses of the Draft scheme Clause 1(a), (1)(c) and (1)(d), the Bench has clarified that the transfers made will have to abide by the final outcome of the special leave petition pending before the Supreme Court.

Therefore the Government of Gujarat will constitute a High Level Committee to examine and permit transfer of plots by the allottees on being satisfied about genuineness of following grounds:

• Clause 1(a): Transfer for some public purpose, philanthropic purpose, charity to any charitable trust or any such entity without any monetary consideration. In such cases, no premium is to be charged.
• Clause 1(b): To add name of the spouse as joint holder of the property
• Clause 1(d): When the original allottee has died and his spouse or legal heirs is to be included.

While three clauses of the Draft Scheme have been approved, the Bench observed that the two clauses which were challenged by Advocate Prashant Bhushan, appearing for the petitioner, will be considered at a later date.

The following two clauses where challenged on grounds that they contemplate profiteering by the allottees:

• Clause b: According to clause B the High Level Committee constituted by the State will allow the transfer of property 'when original allottee has ceased to hold the position due to which an allotment of plot was made to him/her and 15 years have elapsed thereafter'

• Clause e: Transfer will be allowed'When the plot holder after retirement or seizing the office want to settle elsewhere either in his hometown or with his family/children for personal care in old age."

The present matter pertains to challenge to the discretionary allotment of plots to MLAs/MPs and/or other high-level functionaries in Gandhi Nagar at concessional rates.

The Bench had on last occasion directed the State of Gujarat to prepare a draft mechanism to ensure that the transfer of plots, will be made on a non-profit basis. The direction was in an application filed by BJP MLA Sunil Oza aggrieved by High Court orders, saying that he is desirous to transfer his property, a plot in Gandhinagar Gujarat.

Courtroom Exchange:

During the hearing, Advocate Prashant Bhushan initially sought time to respond to the scheme framed by the Government.

"We are not going to pass an order on merits of the matter, that can be considered later on. About the scheme do you have any objections?" the Bench asked.

Mr Bhushan said "Yes several objections. They say in clause b, property can be transferred when allottee ceases to hold his position due to which he was allotted and 15 years have elapsed. These were plots given to these people by virtue of their office. There how can be that something given to them at nominal costs is transferred?"

Mr Bhushan further said " a scheme was brought by Gujarat government that all MPs, MLAs, former MPs, MLAs and former and present Ministers would be allotted the plot at nominal price. Thereafter the High Court suo moto stayed these proceedings, questioned the allotment. It should be surrendered back to the government, they can't profit out of that."

"Are you saying he is not entitled to transfer and sell property at all?" the Bench asked

"It should go back if he is not holding the property." Mr Bhushan said.

"Only when he ceases to hold office, thereafter 15 years. He also pays premium to the government", Solicitor General Tushar Mehta, who appeared for the State of Gujarat, submitted.

"The transfer is subject to premium. Some premium kind of thing is payable to the State" Justice Surya Kant said.

Mr Bhushan further explained "They are saying after 25 years the premium will be zero. They can profit 100% after 25 years. When the entire allotment is under question in the two petitions allowing them to transfer and profit would be actually go contrary to the basis on which the High Court interfered in this matter suo motu."

"If they sell it to a new person third party rights get created" Mr Bhushan added.

"They are taking a risk, a stand, definitely they will incorporate that tomorrow if we allow the petition, they will loose their right. They are taking that chance" the Bench said

"What we feel is, we can't stop them from transferring property eternally." CJI said.

The Bench then asked SG Tushar Mehta to take out the two clauses b and e that Mr Bhushan has objected to.

Background:

The issue relates to a decade-old case regarding the sale and transfer of over 15,000 plots, allotted at concessional rates in Gandhinagar to some MPs, MLAs and government officials and alleged irregularities in those sales.

The Gujarat High Court had in the year 2000 taken suo moto cognisance of two policies of State of Gujarat permitting transfer of plots allotted to Government officials, contained in a Government Resolution which became subject matter of the suo moto matter. The High Court had thereafter ordered a stay on the Government resolution on 3rd April 2001.

When the order of stay was appealed before the Supreme Court, it stayed the High Court's order till disposal of the suo moto matter and asked the High Court to dispose the same expeditiously.

Later in the year 2012, the special leave petition in which the present application has been filed, was filed before the Supreme Court raising similar issues and the Court asked the High Court to decide the suo moto matter expeditiously.

Supreme Court had on 2nd November, 2012 directed that no further allotments or permission to transfer the plots already allotted under Government Resolutions in question would be granted without leave of the High Court, till disposal of suo moto case before the High Court.

When the matter was still pending disposal before the High Court even after 5 years, the Supreme Court in 2017 transferred the suo moto case from Gujarat High Court to itself. As a consequence of the top Court's order, the High Court refused to entertain applications seeking leave for transfer of plots under the impugned GR's.

The present application filed by MLA Sunil Oza through Advocate Saurabh Mishra has argued that till the Supreme Court adjudicates the legality of those GRs, some mechanism is required to be evolved where individual cases of transfer can be considered on merits.

The applicant has submitted that there are certain individual cases in which the allottee of the plot is desirous of transferring its plot bona fide and not with any profit motive. Therefore each case of transfer may have to be examined in context of circumstances necessitating the transfer.

"It may therefore be in the interest of justice that instead of continuing a stalemate resulting out of the orders passed in the present proceedings or order of the High Court and its pendency a mechanism is worked out by the State of Gujarat where individual cases can be considered and transfer of plots are permitted for good, valid and bona fide reasons", the petitioner has argued.

(Case Title : Maulin J Barot v. State of Gujarat | SLP(c) 896/2012)

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