Allotment Of Public Properties On The Basis Of Discretionary Quota Has To Be Done Away With: Supreme Court

The Supreme Court observed that the allotment of public properties on the basis of discretionary quota has to be done away with.

Such allotment must be transparent and has to be fair and non arbitrary, the bench of Justice MR Shah and BV Nagarathna observed.

The court added that even in the case where the policy decision is taken to allot the plots to a particular class – downtrodden class etc. in that case also the guidelines must be strictly followed.

In this case, the allegation against certain public servants who were occupying crucial positions in Bhubaneswar Development Authority and in the Housing and Urban Development Department, Government of Odisha was that they surreptitiously distributed prime plots in Commercial Complex District Centre, Chandrasekharpur, Bhubaneswar. It was alleged that all the accused persons have committed the offences under Section 120B IPC and Section 13(2) read with Section 13(1)(d) of the 3 Prevention of Corruption Act, 1988.

Allowing their petition filed under Section 482 CrPC, the Orissa High Court quashed the FIR.

In appeal, the Apex Court bench noted that, in the instant case, the allegations are an instance of abuse of the powers with a mala fide intention and allotment of the plots to the family members by hatching a criminal conspiracy and to allot the plots to the family members at throw away price causing loss to the B.D.A. and the public exchequer.

The court observed that action has to be initiated against the officials who are prima facie responsible for the illegality in the allotment of the plots to the relatives and/or family members resulting in huge loss to the B.D.A. and the public exchequer.

While concluding the judgment, the bench made these observations:

11. Before parting we may observe that now the day has come to do away with allotment of government largess on the basis of discretionary quota as this inevitably leads to corruption, nepotism and favouritism. Government and/or the public authorities like B.D.A. are the custodian of public properties. Allotment of public properties must be transparent and has to be fair and non­-arbitrary. In such matters public interest only has to be the prime guiding consideration. The aforesaid principle is in order to get the best or maximum price so that it may serve the public purpose and public interest so as to avoid loss to the authority and/or the public exchequer.

The court added that the allotment of plots in the discretionary quota cannot be at the whims of  the persons in power and/or the public servants who are dealing with the allotment of plots in the discretionary quota.

"When a democratic government in exercise of its discretion selects the recipients for its largess, then discretion should be exercised objectively, rationally, intelligibly, fairly and in a non­-arbitrary manner and it should not be subjective and according to the private opinion and/or the whims and fancies of the persons in power and/or the public servants. Even if guidelines are issued to be followed while allotment of the plots under the discretionary quota and it is found that many a time they are hardly followed or are manipulated to suit the particular circumstances. Therefore, the best thing is to do away with such discretionary quota and allotments of the public properties/plots must be through public auction by and large. Even in the case where the policy decision is taken to allot the plots to a particular class – downtrodden class etc. in that case also the guidelines must be strictly followed and as observed hereinabove the allotment must reflect the fair play and non­-arbitrariness and should have objective, criteria/procedure.", the court observed.

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