Supreme Court: Noticing that the allotment of government largesse on the basis of discretionary quota inevitably leads to corruption, nepotism and favouritism, the bench of MR Shah* and BV Nagarathna, JJ has suggested that discretionary quota should be done away with, and allotments of the public properties/plots must be through public auction by and large.
“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.”
The criminal conspiracy that led to the observation
The observation came in a case where in pursuance of an alleged criminal conspiracy and by abusing their official positions, the officials of the Bhubaneswar Development Authority (BDA) and of the Housing and Urban Development Department, Government of Odisha Deptt. (H.&U.D.), Government of Odisha, surreptitiously distributed 10 prime plots in the discretionary quota to their own family members/relatives.
The Orissa High Court had quashed the criminal proceedings against the official. However, the Supreme Court found the said order unsustainable, both, in law and/or facts as the,
“The allegations against the respondents – accused are very serious including hatching a criminal conspiracy in allotment of 10 plots in the discretionary quota arbitrarily and to their own family members/relatives. There are specific allegations with respect to huge loss caused to the B.D.A and the public exchequer, as according to the prosecution the plots were allotted at throw away prices.”
The Court held 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.
Why it’s time for the discretionary quota to go
Allotment of public properties must be transparent and has to be fair and non-arbitrary and in such matters public interest only has to be the prime guiding consideration. The objective is 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.
“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.”
However, 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 Court was of the opinion that 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.
[State of Orissa v. Pratima Mohanty, 2021 SCC OnLine SC 1222, decided on 11.12.2021]
*Judgement by: Justice MR Shah